61 Wis. 660 | Wis. | 1884
1. There is no exception to any specific portion of the charge. The exception is “ to so much of the following of the charge to the jury in this case.” This is followed by four printed pages, divided up into three sections, each of which contains numerous and independent propositions. The well-established rule, that exceptions so general must be disregarded, precludes us from considering any alleged error in the charge.
2. The court was requested to instruct the jury, in effect, that the plaintiff could not recover unless they found from the evidence that the wife authorized the husband to sign this particular note for her as her agent. To give such an instruction would have excluded from the consideration of the jury all evidence of general agency, and all evidence of expressed or implied authority to make notes generally. Clearly, it was not good law, as applied to the facts in this ease.
3. The court was requested to instruct the jury, in effect,
4. The court was requested to charge the jury, in effect, that the plaintiff could not recover if the jury found from the evidence that the wife was an accommodation maker, even though they found that the husband had authority to sign the note as her agent. Such an instruction would have been wholly inapplicable to the facts and evidence in the case, and hence misleading.
5. The court was requested to instruct the jury to the effect that the fact that the husband was the agent of his wife to carry on the farm was not sufficient of itself to establish such an agency as would authorize him to sign her name to a promissory note. The court charged, in effect, that there was no direct proof of the husband’s agency or authority to sign his wife’s name to the note. In fact, the charge went still further, and indicated pretty clearly that there was a failure of proof as to such agency in fact; and then, upon all the facts and circumstances in the case, submitted to the jury the question whether there was, on the part of the wife, such a holding out of agency during the time in question as would justify people dealing with the husband in believing that she had given him authority to sign the note as her agent. That such holding out might, in a given case, be proved by circumstantial, evidence, no one would doubt. Circumstantial evidence is defined to be, where the proof applies immediately to collateral facts sup
That a principal may be bound by such holding out, though no agency in fact exists, seems to be settled. Kasson v. Noltner, 43 Wis. 650; Bentley v. Doggett, 51 Wis. 231; S. C. 37 Am. Rep. 827; Gano v. C. & N. W. Ry Co. 49 Wis. 57; S. C. 60 Wis. 12; Savage v. Davis, 18 Wis. 608; Debenham v. Mellon, 34 Eng. (Moak), 245. It is upon the same theory that a person, though not a partner in fact, may be bound as such by his conduct, declarations, admissions, and acquiescence. Benjamin v. Covert, 47 Wis. 375; S. C. 55 Wis. 157; Gilchrist v. Brande, 58 Wis. 201.
6. The court refused to set aside the verdict as against and contrary to the evidence given on the trial. Was that error? We confess this is the most difficult question presented on this appeal. It stands confessed that the husband put all the signatures to the note, as indicated. It is undisputed that the husband had carried on his wife’s farm, bought and sold property for her, hired the help, transacted her business in relation to the farm and the management of it, and run the farm from 1874 to the time of the trial; and that during that time the wife had never personally signed any note. The husband testified, among other things, in effect, that he signed his wife’s name, as agent, in one single instance, and that was on a contract at Omro; that soon after they moved upon the farm in April, 1874, he bought a reaper, and the man of whom he bought it wanted he
.After a very careful consideration we are inclined to think the trial court was justified in submitting the case to the jury upon all the facts and circumstances disclosed by the evidence, especially in view of the fact that there was no specific
The theory upon which a husband is held liable for necessaries sold to the wife is an agency implied from all the facts and circumstances of a given case. Here it was in evidence that the defendants had for many jmars lived together as husband and wife. That tender relation of itself called for mutual confidence and affection. To this relation there was added the confessed general agency and authority disclosed in the evidence. The business conducted required a wide range of general authority on the part of the husband, or very frequent business communication between him and his wife. Persons dealing with the husband in matters pertaining to the business had the right to infer that the wife was cognizant of whatever the husband had been accustomed for years to do in the business. Here there is evidence tending to show that, for years prior to the making of the note in suit, the husband had, to the knowledge of the plaintiff, been accustomed to execute promissory notes in the name of and as the agent of his wife. Were not the jury authorized to find from all the facts and circumstances of the case, upon
By the Court.— The judgment of the circuit court is affirmed.