Arnold v. Spurr, 130 Mass. 347

Arnold v. Spurr

130 Mass. 347 | Mass. | 1881

Lord, J.

We are not called upon to decide whether the evidence in this case was sufficient to sustain the burden of proof, which was on the plaintiff, but only whether there was evidence proper for the consideration of the jury upon the issue presented; and we think there was.

*349It is, of course, incumbent upon an excepting party to show that his rights have been injuriously affected in the conduct of the trial. There is no such presumption in his favor; and when therefore it is said that “ George W. Spurr had the management of said property of his wife, the defendant, and gave all necessary directions and orders regarding the same,” it is not to be assumed that it was as an agent of the defendant that he had the management, nor are the acts which he did in such management, nor the directions and orders, to be presumed to be of such a character as to prove agency. The fact, however, that he had such management, and that he did give such directions, was in itself a competent fact, and was of itself some evidence that he was acting in behalf of the owner of the estate. The facts that the defendant was the owner of the estate upon which the work was done, that it was done for her benefit, that the goods furnished by the plaintiff went to her benefit, and that she had knowledge that the goods were thus furnished, and no measures were taken by her to show that, although she was receiving the benefit of the property, she was not to be liable for the cost of it, were all competent upon the question whether the work was being done for her. It is to be observed that her husband did not contract with the plaintiff personally, but that the carpenter, who was making repairs, ordered the materials furnished by the plaintiff; and it does not appear whether it was by his order, or how otherwise, that they came to be charged to the husband. It does not appear that he requested the materials to be charged to himself, nor does it appear that the carpenter directed them to be so charged. What appears is this: repairs were going on upon an estate occupied by the defendant and her husband; a carpenter, who is assumed to be authorized to purchase materials, purchased them to be used upon the estate; the defendant knew they were thus used. It cannot be said that a jury would not be warranted, in the absence of all other evidence and explanation, in finding that it was the owner of the estate, the one for whose benefit the repairs were made, who was the principal, and under whose authority the carpenter was obtaining the materials. It is quite clear that the plaintiff did thus act, and so did Palmer. The case finds that, at the time the charge was made to the husband, the plaintiff thought he was the owner of the

*350estate. If at that time he had known that the husband was not the owner, and, at his or at any other person’s request, he had notwithstanding sold them upon his credit, his relation to the subject would be entirely changed. There was evidence that he actually sold them, as he supposed, upon the credit of the owner of the estate; and there was certainly some reason for the jury to believe that the owner of the estate must also have so understood it. It is not to be presumed that between the defendant and her husband there was a designed concealment of the true ownership of the house, or of the real principal for whom Palmer should act.

The defendant was not called upon, and therefore was not required to make any explanation, or to show why credit might be supposed to be given to some other than the party really in interest, and she may have the means of explaining all these circumstances; but, in the absence of all explanation, we think it was a proper case to be submitted to the determination of the jury. Exceptions sustained.