Benjamin v. Benjamin

15 Conn. 347 | Conn. | 1843

Storrs, J.

The justification set up by the defendant, for doing the acts complained of, in respect to the cutting and carrying away the grass in question, depends on the validity of the authority given, by the wife of the plaintiff.

It is not claimed by the defendant, that such authority is valid, by virtue of the power which the wife has, in certain cases, to charge her husband, in the procurement of necessaries for herself or the family. For it was not for the of any part of the family, that she, in the present case, ized or procured the defendant to do the acts complairífecrbf; nor could they, in any measure, contribute to that Neither the grass, nor its avails, went to their use ; n«r was the arrangement respecting it, made with any such viewL fluí solely for the benefit of others. Although, therefore, it ⅜1⅝ be conceded, that the wife, under the circumstances claimed to be proved by the defendant, Would have had the right, if necessary for the support of herself or the family, to dispose the grass and apply the avails to that purpose ; and that jler jíUS)3ancj wouj(j have been bound, by such an appropriation of his property ; it would not go to show, that the disposition of the property, in the present case, was valid or binding on him, no such cause existing, and the disposition being for no such purpose. Hence, it is wholly unnecessary to consider the subject of the liability of the husband, in any case, for contracts entered into, through the instrumentality of the wife, for necessaries furnished on his credit. The case has not been attempted to be placed on the principles applicable to those cases. The question here, therefore, does not respect the liability which the law imposes on the husband, independent of any express assent on his part, or notwithstanding his express dissent; but is purely one of agency — cf an authority possessed by the wife, to act on his behalf, in relation to his general concerns.

A wife, as such, has no original or inherent power to make any contract, which is obligatory on her husband. No such right arises from the marital relation between them. If, therefore, she possesses a power in any case, to bind him, by her contracts made on his behalf, it must be by virtue of an authority derived from him, and founded on his assent — although such assent may be precedent or subsequent, and express or implied ; and this is the light in which such contracts are universally viewed. When such authority is conferred, the relation between them and the consequences of that relation, are analogous to those in the ordinary case of principal and agent. And that she has the capacity to be constituted, by the husband, his agent, and to act as such, equally with any other person, there is no doubt. In Fitz. Nat. Brev. 120. G. the law is thus laid down: “ A man shall be charged in debt for the contract of his bailiff or servant, where he giveth authority unto the bailiff or servant to buy or sell for him : and so the contract of the wife, if he give such authority to his wife, otherwise not.” In Manby v. Scott, 1 Mod. 125. it is said, by Mr. Justice Hyde, that “ a feme covert cannot bind or charge her husband, by any contract made by her, without the authority or assent of her husband, precedent or subsequent, express or implied.” The law on this subject is stated, with great clearness and precision, by Selwyn, in his Nisi Prim. p. 288., where he treats of the liability of the husband as to contracts made by the wife during coverture. After stating that-the relation of husband and wife is, in respect of the wife's contracts, binding the husband, analogous to the relation of master and servant, he says : “ Indeed, in contemplation of law, the wife is the servant of the husband and, after citing the above passage from Fitzherbert, he says: “ From this passage it appears, that the husband is not liable to his wife’s contracts, unless he has given his authority or assentand adds, “ It is incumbent, therefore, on a creditor, who brings an action against a husband, upon a contract made with his wife, to show, that the husband has given such assent, or to lay before a jury such circumstances as will enable them to presume, that such assent has been given; and in the latter case, if such presumption is not rebutted by contrary evidence, the jury may find against the husband, but not otherwise ; for the wife has not any power originally to charge the husband.” These principles are so plainly in accordance with the whole current of the authorities, that a reference to some of them only is necessary. Vin. Ab. tit. Baron & Feme. E. A. 5. Pow. on Cont. 57, 58. 5 Bing. 550, 2 Conn. Rep. 638. 1 Bac. Ab. 489. 1 Lev. 4. Bull. N. P. 136. 1 B. & P. 227. n. by Day. 1 Salk. 118. 2 Ld. Raym. 1006. Clancy 23.

But, although these principles are universally acknowledged, it is not always easy to determine what amounts to proof of the husband’s assent, where it is claimed to be implied merely ; as will be obvious, by looking at those cases, especially, in which questions have arisen as to the liability of the husband for supplies furnished to his wife, when the husband had abandoned or deserted her, or turned her from his doors, or there was an agreement for a separation between them, with an allowance for her support. Whatever difficulty there may be in the present case, is of that character.

In this case, no authority to make the contract, claimed to be proved respecting the hay, was conferred expressly, by the plaintiff, upon his wife. This question of fact was submitted to the jury, who found, that he did not constitute her his agent generally, to manage his business, nor specially authorize her to make the contract in question, nor subsequently ratify such contract.

The question, then, and indeed the only one made on the argument, is, whether, from the facts claimed to be proved by the defendant, the law implies any power in the wife of the plaintiff’ to make the contract in question on his behalf.

The defendant claims, in the first place, that such a power is implied, because it is, in its nature, necessarily incidental to the authority conferred on the plaintiff’s wife to lake charge of his farm, and manage and superintend it. It is a familiar principle of the law of agency, that every authority given to an agent, whether general or special, express or implied, impliedly includes in it, and confers on such agent, all the powers which are necessary, or proper, or usual, to effectuate the purposes for which such authority was created. It embraces the appropriate means to accomplish the desired end. This principle is founded on the manifest intention of the party conferring such authority, and is in furtherance of such intention. The rule is most fully and minutely illustrated, by examples and authorities, in Judge Story’s treatise on Agency, to which it is only necessary to refer. As applicable to the case before us, the plaintiff ’s wife, on the ordinary principle of agency, would have power to do whatever is necessary or proper, in the care and management of the farm entrusted to her, such as keeping in order the buildings, fences and implements of husbandry, cultivating the land, and preserving the crops, and perhaps disposing of such crops, if necessary to enable her to do these things ; and generally, to do whatever is necessary and proper in order to execute the trust reposed in her; and the usual course of such an employment might be shown, in order to ascertain what was thus necessary and proper, and the character and design of the trust. Farther than this, her power would not extendi It is scarcely necessary to say, that, within these principles, Ae has no right to dispose of her husband’s property in her possession, in the extraordinary and injurious manner, and for the purpose, claimed to be proved by the defendant. If it should be held, that such an agent might make such a contract, it would be difficult to stop short of investing her with a general and unlimited authority as to all his affairs. The very case of entrusting another with the superintendence of a farm, is put in the books on the civil law, under which it was held, that an agency of that description does not authorize the agent to sell the property of the principal for any purpose, unless it be of a perishable nature. Whether we should restrict his powers within limits so narrow, it is unnecessary to enquire ; but on no principle can we extend them as is claimed in the present case.

It is next claimed by the defendant, that from the marital relation between the plaintiff and his wife, the law implies a larger authority than from the ordinary relation between principal and agent, and that the power to make the contract in question is implied from such relation. We have seen, that a wife, by virtue of such relation, possesses no original power to bind her husband, by her contracts made on his behalf; and that her powrer for that purpose must, therefore, be derivative. It appears, nevertheless, from the authorities, that the law will, in some cases, presume the wife to be the agent of her husband, when no such presumption would ex* ist as to another person ; and also will, in some cases, imply a larger authority to the wife than to an ordinary agent; and this perhaps, whether the husband be absent from home, or not; and that, in other cases, where he is absent, a presumption would arise that his wife has authority to act in his behalf, which would not exist, if he were at home. But it will be found, that in all such cases, these inferences are founded on the fact that it is usual and customary to permit the wife to act in such cases. It is a presumption arising from the state of society. Thus, in Anonymous, 1 Stra. 527. “Pratt, C. J. allowed the wife’s declaration that she agreed to pay 4 s. per week for nursing a child, was good evidence to charge the husband ; this being a matter usually transacted by the women.” Judge Reeve, in his Domestic Relations, (p. 79.) says: “The husband is bound to fulfill the contract of his wife, when it is such an one as wives, according to the usage of the country, commonly make. If the wife should purchase, at a merchant’s store, such articles as wives in her rank of life usually purchase, the husband ought to be bound ; for it is a fair presumption that she was authorized so to do, by her husband. If, however, she were to purchase a ship or yoke of oxen, no such presumption would arise ; for wives do not usually purchase ships or oxen.” On the same ground, in Church v. Landers, 10 Wend. 79. the wife, in the husband’s absence, was presumed to have been left an agent for the hiring out of his horses. 2 Cowen’s Phillipps on Ev. 294. 298. In Spencer v. Tisue, Addis. R. 316. a payment to ^ wife, 0f a debt due to the husband, in his absence, was held good, for the same reason. We do not find any adjudged case, which sanctions the doctrine that the wife, whether the husband is abroad or at home, is presumed to be the agent of her husband generally, or to be entrusted with any other authority as to his affairs, than that which it is usual and customary to confer upon the wife. It would be not only unreasonable, and, as it respects the husband’s interests, unsafe, but it would be going beyond what could fairly be presumed to be his intention, to extend the powers of the wife by implication or presumption farther than this principle warrants ; and that it justifies the contract in question, cannot be claimed.

We think, therefore, that the defendant’s justification, founded on the authority of the plaintiff’s wife, fails.

It is also claimed, that the court below erred in the rule of damages given to the jury. If the rule, in this case, were not varied, by the circumstance that the expenses of curing the hay were included in the judgment recovered by the defendant against the plaintiff, and paid from the avails of the hay on the execution, it is clear, that the cases cited, particularly from the New-York reports, would vindicate the rule laid down on the trial. Brown v. Sax & al. 7 Cow. R. 95. Baker v. Wheeler & al. 8 Wend. 505. Whether this court would be disposed to adopt the rule of damages in those cases, as a general one, applicable to actions of this description, we do not intend to decide; for we are satisfied, that, under the facts of this case, the rule prescribed was correct. The expenses of curing the hay being included in the costs taxed against the plaintiff, and collected and applied on the judgment from its avails, it is obvious, that the plaintiff would not be fully indemnified against the loss which he has sustained, by the acts of the defendant, unless he recover the value of the grass after it was converted into hay; and the least that justice demands, is an indemnity to the plaintiff On the facts, therefore, admitted on the trial, the rule of damages was correct.

For these reasons, a new trial should not be granted.

In this opinion the other Judges concurred.

New trial not to be granted.