Peck v. Voget

Mr. Justice McBride delivered the opinion of the court. The objection to the evidence offered by defendant was properly sustained. The contract for breach of which the action was brought is set forth fully as an exhibit to the complaint, and shows an absolute agreement to build a house for plaintiff. If defendant wished to insist upon [146] the proposition that plaintiff, though apparently acting in his own name, was really the agent of an undisclosed principal, he should have raised that question by suitable denials in the answer, so that plaintiff would be put upon notice and prepared to defend: Goetz v. Ambs, 27 Mo. 28; Prall v. Peters, 32 Neb. 832 (49 N. W. 767). The contract showed an absolute written .agreement by defendant to build plaintiff a house. Plaintiff contracted and paid for a house to be worth $700, and got one worth $350. Now, whether he built for himself or another, he was entitled to have built just what he contracted for. One contracting with another for the erection of a building ought not to be required to litigate his title to the land on which it is erected in an action for damages for nonperformance of the contract, and especially where no issue of that nature is tendered by the answer. The judgment is affirmed. Affirmed.