
    SERAN v. ROSE et al.
    No. 11328 —
    Opinion Filed July 3, 1923.
    1. Mechanics’ Liens — Personal Judgment.
    Under section 7463. Comp. Stat. 1921, a subcontractor, materialman, or workman, between whom and the owner there is no privity of contract, and in whose favor no direct liability has been imposed upon the owner, is not entitled to a personal judgment against the owner.
    2. Same — Judgment.
    A contractor obtained judgment against the owner for balance due on building per contract. Record examined, and held, the court erred in adding thereto, in its judgment, the amount of an un contested ma-terialman’s lien for which the contractor alone was personally liable.
    3. Contracts — Written Contract — How Altered — Executed Oral Agreement.
    Section 5081, Comp. Stat. 1921, provides (hat: “A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise.” Record examined, and held, to sustain a verdict of jury that contract was changed 'by executed oral agreement.
    4. Principal and Agent-Agency —Paid Evidence — Proof.
    An agency resting in parol • can generally be proved by testimony of either the principal or person who claims to act as agent.
    (Syllabus by Estes, C. )
    
    Commissioner's’ Opinion,
    Division No. 2.
    Error from District Court, Okfuskee County; Inicien B. Wright, Judge.
    Action by A. Rose against B. P. Serán and Dascomb-Daniels Lumber Company to foreclose mechanics’ lien. Judgment for plaintiff and for defendant Lumber Company, and defendant Serán brings error.
    Modified and affirmed.
    J. C. Wright, O. T. Huddleston, and Logan Stephenson, for plaintiff in error.
    Martin L. Erederichs and W. E. Wells, for defendants in error.
   Opinion by

ESTES, G.

Defendant in error A. Rose, as plaintiff, sued B. P. Serán, plaintiff in error, as defendant, and the Das-comb-Daniels Lumber Company, defendant in error, as defendant, in the district court of Okfuskee county to foreclose mechanics’ lien on certain real estate in the town of Pa den, Okla. He sued on his written contract for a balance due' and for certain extras placed in the building by- mutual agreement of the parties, and alleged that .the lumber company had furnished material to him for the building and that the lumber, company had a lien for the same. .Sevan admitted the contract, denied that the building was ever completed according to contract, set up various items wherein such failure consisted, and asked damages for failure to deliver the building witbin the time, and disputed the amount of the balance due under the contract, and counterclaimed for a balance against plaintiff. Thé lumber company admitted the facts pleaded by the plaintiff, set up its lien, and asked for a judgment against both Rose and Serán, and for a foreclosure of its lien. Serán did not file reply to the answer and cross-petition of the lumber company. Without any objection, the court submitted the issues between Rose and Sevan to a jury, and excluded from the consideration of ihe jury all issues as to i he claim and rights of the lumber company. A verdict for $1,400 and attorney fees was rendered in favor of the plaintiff. On said verdict the court rendered personal judgment in favor of Rose against Serán and ordered foreclosure, and also rendered personal judgment in favor of the lumber company against both Rose and Serán and ordered foreclosure.

Serán, as plaintiff in error, lodged the case in this court on- various assignments. The trial really amounted to an accounting between Rose and Serán, and the jury having passed upon the various items between them on instructions by tbe court, which were not excepted to, Serán is foreclosed thereby as to such accounting under the well-known rules of law. Certain other assignments of error remain to be considered.

(1, 2.) Plaintiff in error complains of tbe personal judgment against her in favor of the lumber company. Counsel for defendants in error contend, that plaintiff in error did not raise any Objeción to such personal judgment in the motion for new trial. A party cannot assign error for the first time on appeal. Brown v. Chowning, 59 Okla. 278, 159 Pac. 323. While the first ground of the motion for new trial is somewhat indefinite, it is specified as error, the rendering of judgment in favor of the lumber company. This, we think, is sufficient to save the question for review. Neither the pleadings nor the evidence show any contract between the lumber company and Serán. The lumber company filed its lien under section 7463, Comp. Stat. 1921, and served its notice thereunder and claimed no lien otherwise. The lumber company was, undoubtedly, entitled to personal judgment against Rose. We are at a loss to understand on what theory it claimed, or tbe court rendered personal judgment against Serán. Although the latter did not reply to the cross-petition of the lumber company, denying personal liability, the lower court should have modified its judgment in that behalf when the matter was called to the court’s attention in the motior for new trial. In Alberti v. Moore et al., 20 Okla. 78, 93 Pac. 543, this court held:

“A subcontractor, materialman, or workman, between whom and the owner there is no privity of contract, and in whose favor no direct liability has been imposed upon the owner, is not entitled to a personal judgment against the owner. The judgment rendered should be a personal one against the original contractor.”

In this connection, plaintiff in error also assigns that the court erred in entering judgment in favor of the lumber company for the amount of its claim, in excess of the amount found due to Rose. After a portion of the argument of counsel had been made to the jury, the court, without exception made by any of the parties, gave an additional instruction to the effect that the amount of the claim of the lumber company was included in the claim of Rose, and that if the jury found for Rose, they must deduct the amount of'the lumber company’s claim from the amount found due Rose, and that the jury must consider the amount claimed by the lumber company ip passing upon the question as to hew much was due Rose. Under this instruction, it is clear that the verdict was for the amount due Rose only. The contract on which Rose sued provided that he should pay for all materials. He testified, in substance, that he, and not Serán, should pay the lumber company. It was contrary to the evidence, if not arbitrary, for the court, by the judgment, to attempt to add the amount of the lumber company’s claim to the amount of the verdict in favor of the plaintiff,

3. Plaintiff inn error also complains that it was error for the court to permit Rose-to make parol proof of the extras which he furnished on the building. The contract sued upon by Rose provided that no alterations in the plans and specifications be made unless by agreement in writing and attached thereto. Section 5081, Comp. Stat. 1921, provides:

“A contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise.”

Since it was not changed by writing, it could be changed only by an executed oral agreement. It was a disputed question of fact fully submitted to the jury whether there was an executed oral agreement. There was ample evidence to support the verdict of the jury in this behalf.

4. Plaintiff in error also complains that the court erred in admitting testimony to bind B. P. Serán with transactions carried on by her husband, C. M. Serán, for that there was no competent evidence to show the agency of said husband. Said husband testified that he represented his wife during all this time. The sworn testimony of the husband to the effect that he was the agent of his wife is competent as tending to prove his agency, and this should not be confused with evidence of liis declarations or statements when not testifying. Bagg et al. v. Shoenfelt, 71 Oklahoma, 176 Pac. 511; Whitcomb v. Oller et al., 41 Okla. 331, 137 Pac. 709. Moreover, B. P. Seran introduced several checks signed “B. P. Seran, per C. M. Seran,” as evidence of practically all the payments claimed to have 'beeu made to the plaintiff. The record also shows that said husband did other things in looking after the building and generally handled the matters in controversy for his wife. This assignment is not tenable.

5.Nor can plaintiff in error complain for misconduct of counsel for Rose. Plaintiff in error did not save herself by proper objections and record from alleged misconduct of opposing counsel. There being no errors, except those herein pointed out, a new trial of this case is unnecessary.

The cause is remanded, with directions to the trial court to modify its judgment to the extent of vacating the personal judgment in favor of. Dascomb-Daniels Lumber Company against Serán, and also to deduct the amount of said company’s claim, attorneys7 fees and costs from the amount of plaintiff Rose’s judgment in disbursing the proceeds of the sale of the property on foreclosure of the liens, or otherwise protect Serán from the payment of the lumber company’s claim, and. as thus modified, the judgment is affirmed.

By the Court: It is so ordered.  