McMurry

This action was brought by Henry H. Mc-Murry to recover damages against defendants for breach of contract. After the action was instituted, and before the trial, he died and Jessie M. McMurry, the administratrix of his estate, was substituted as plaintiff in his place and stead.

The contract upon which the action is based was entered into by Henry H.’ McMurry and Jessie P. McMurry, his wife, with Prey & McIntyre for the construction of a house at Big Pine in Inyo County. Prey & McIntyre abandoned the contract and McMurry completed it. Plaintiff claims $740.88 damages, as money expended in completing the house over and above the contract price, and $300 special damages for its rental value for the period of the delay in construction. A judgment was entered against all defendants for the damages prayed for.

Appellant presents several assignments of error upon which it relies for a reversal of the judgment. Under the view we take of the case it will be necessary for us to consider but one of them. The court found that Prey & McIntyre were the ostensible agents of appellant in entering into the contract with deceased and his wife. If the evidence fail's to support this finding the…