| Vt. | Jan 15, 1858
The opinion of the court was delivered by
The court below charged the jury “ that upon the execution and delivery of the notes by the defendants to E, D.
The notes were given for real estate which Mrs. Barber inherited from her father, were made payable to her, and were on the day of their execution, delivered to the husband of the plaintiff^ who immediately thereafter delivered them to the plaintiff. Since their delivery to her they have always remained in her exclusive possession.
I. The- goods furnished by the defendants at the plaintiff’s request, for the benefit of the family and upon an agreement with her and her husband that they should apply in payment on the notes, should be allowed as payment. Such an agreement so acted upon was clearly binding upon her and her separate property, which by the agreement was to be affected by it. The charge of the court does not seem to have limited the jury to an allowance of such part of the account and no more.
II. The account, which the defendants claim to apply as payment on the notes, contains not only goods furnished for the use of the family upon the agreement with the plaintiff, but also goods not for the use of the family, delivered to persons not members of it, upon orders of the plaintiff’s husband. And it does not appear that the husband agreed that such articles should apply upon the notes. His promise “ to get the notes and have the application made,” extended only to articles for family use. The articles not for .family use could not apply upon the notes, unless the notes were Ms property and not his wife’s. The court charged the jury that upon the execution and delivery of the notes by the defendants to E. D. Barber, they became his absolute property.
Whatever conflict of opinion upon this subject may have existed formerly and in the early cases cited in argument, it is now settled in this state, that the husband must do some positive act to reduce the choses in action of the wife to his possession, before they become his property; and the fact that the choses in action have passed into the custody and possession of the husband is not itself a reduction of them to possession. In the recent case of The heirs of Holmes v. The administrator of Holmes, 28 Vt. 765" court="Vt." date_filed="1856-04-15" href="https://app.midpage.ai/document/wilson-v-bates-6576006?utm_source=webapp" opinion_id="6576006">28 Vt. 765, it was held that although the wife handed the notes to the husband and
In this case we find no evidence tending to show any act of the husband indicating an intent to withdraw the notes from the control of the wife and to reduce them to his possession, but the contrary. It is, therefore, unnecessary to decide what acts of the husband are sufficient to constitute a reduction of the wife’s notes to his possession, or to determine, if such acts were shown, whether the statute of A. D. 1850 would still preserve the separate property of the wife for her use.
The agreement which the plaintiff and her husband made with the defendants was, that goods for family use should apply in payment on the notes. It appears that the defendants kept no separate account of such articles, but so mingled them in the account with others that they were unable to distinguish them. It was the duty of the defendants to have kept the account so that the articles for the use of the family could have been distinguished from those not for such use. The burden of proof was on the defendants to show what the goods were, which, by the agreement, were to apply on the notes, and the jury should have been instructed to allow only those articles which the defendants proved to have been for the use of the family.
As there must be a new trial of the case, and the counsel agree as to the rule of law which regulates the casting of interest upon accounts, and differ only as to the mode in which it actually was cast, we do not deem it necessary to consider that question.
The judgment of the county court is reversed,