
    Martha A. Garrison, Appellant, v. Kate Ringland, Respondent.
    St. Louis Court of Appeals,
    February 15, 1898.
    Affirmed for the same reasons stated, and upon the same state of facts, as in Garrison v. O'Donald, page 621, ante, except that in this ease it appeared from plaintiff’s testimony that her agent had express authority to make the contract of novation pleaded in this, as it was in that case.
    
      Appeal from the Greene Circuit Court. — Hon. James T. Neville, Judge.
    Abblrmed.
    
      J. M. Harrell for appellant.
    The only evidence in this case even tending to show a release and acceptance is parol, and inadmissible. 1 G-reenlf. Ev. [12 Ed.], p. 312, sec. 275; Lawson on Con., p. 394, sec. 372; Burner Bros. v. Strong, 61 Tex. 555: Sirk v. Ma, 163 Mass. 394; Johnson v. B’y, 141 U. S. 602; Newman v. Bank, 70 Mo. App. 135.
    No proof as to the words and acts of an agent are admissible until his agency is established by proof. White v. B. B., 19 Mo. App. 400; Brooks v. Jameson, 55 Mo. 505.
    Taking the evidence of defendants as a whole, it fails to show a novation from any standpoint. R. S. 1889, sec. 1995; Paper Co. v. Bosbyshell, 14 Mo. App. 540; Clark v. Billings, 59 Ind. 508; Johnson v. Bamsey, 28 Minn. 531; 2 Whar. on Con., sec. 855; Bank v. Moorman, 38 Mo. App. 484; Murphy v. Hanrahcm, 50 Wis. 489; Jacob v. Murphy, 64 Mo. App. 271; Bank 
      
      v. Gardner, 57 Id. 268. See, also, 1 Par. on Con. [6Ed.], 240; 1 Add. on Con. [Morgan’s Ed.], sec. 374.
    The first instruction asked by plaintiff is clearly the law. 1 Grreenlf. on Ev. [12 Ed.], sec. 275, p. 312; Johnson v. IV y, supra. So is her fourth instruction. R, S. 1889, sec. 1995; Paper Go. v. Bosby shell, supra; Aiken & Co. v. Peters, 45 Ark. 313; Kelso v. Fleming, 104 Ind. 180; Butterfield v. Hartshorn, 7 N. H. 345; Lumber Go. v. Meffert, '59 Mo. App. 437; Jacobs v. Mahoney, 64 Id. 271; Newman v. Bank, 70 Id. 135; 16 Am. and Eng. Ency. Law, 862; 1 Par. on Con. [6 Ed.] 240.
    
      Patterson & Patterson and White & Me Gammon for respondents.
    A novation is clearly not with the statute of frauds, and it was not necessary to be in writing. 1 Par. on Con. [6 Ed.], p. 221; Wright v. McCulley, 67 Mo. 135; Black v. Paul, 10 Id. 104.
    Where part of a contract is reduced to writing it is competent to prove the rest by parol. Life Ass'n v. Cravens, 60 Mo. 388; Lumber Co. v. Lumber Co., 39 Id. 214.
    A case was fully made out on the question of novation, and the demurrer to defendant’s evidence was properly overruled. 3 Add. on Con. [8 Ed.] 1226-1231; Heaton v. Angier,28 Am. Dec. 353; Black v. Paul, supra; Butterfield v. Hartshorn, supra; Lester v. Bowman, 39 Iowa, 611; Fdgell v. Tucker, 40 Mo. 523; Tatlock v. Harris, 3 T. R. 180; Cadensv. Teasdale, 53 Vt. 469; Caswell v. Fellows, 110 Mass. 52; Brown v. Kirk, 20 Mo. App. 529; Manney v. Frasier, 27 Mo. 419; Wright v. McCulley, 67 Id. 134; 1 Par. on Con. [6 Ed] 217; Nicholson v. Glover, 41 Ind. 24; 16 Am. and Eng. Ency. Law, 876.
   Bland, P. J.

This is a companion case with number 6949, wherein Martha A. G-arrison is plaintiff, and Wayne O’Donald et al. are defendants, decided at the present term. This suit is to recover the $500 note mentioned in the answer of the O’Donalds in number 6949. The evidence in this case is the same as in the O’Donald case, except the deposition of the plaintiff was taken and read in this case, from which it appears that Sheppard had express authority to make the contract of novation pleaded in this, as it was in the O’Donald case. For the reasons stated in the O’Donald case, the judgment in this caséis affirmed.

All concur.  