The opinion of the court was delivered by
Wheeler, J.
According to the bill of exceptions, the plaintiff’s evidence tended to show that Mrs. Blood, wife of the defendant, applied to the plaintiff to have him “ make for her” the school omnibus in question, and that after negotiations “ it was finally agreed between them that the plaintiff should make such a carriage for her,” at the agreed price ; and this statement of the making of the contract is not in any way varied or affected by anything else that is stated in the exceptions. And according to this statement, he and she, and not he and the defendant, were the contracting parties, and he must have relied upon her undertaking to perform her part as the consideration for his performance of his. Having given credit to her notwithstanding her relation to the defendant, he could not afterwards transfer the contract from her to the defendant, without at least the defendant’s consent, so as to make her undertaking a liability of the defendant. Carter v. Howard, 39 Vt. 106" court="Vt." date_filed="1866-11-15" href="https://app.midpage.ai/document/carter-v-howard-6578190?utm_source=webapp" opinion_id="6578190">39 Vt. 106. As before stated, there is nothing that appears in the case that in effect varies this result. She did not in fact act as the agent of the defendant in this business; for the undisputed evidence tended to show that she owned the house in which she and her children lived, and the horses and carriages she kept, bought the supplies on her own account and in her own name, and that he had nothing to do with the care or management of the family. Therefore, this business with the plaintiff was her own and not the defendant’s ; and as he was not in fact the principal, he could not, correctly, be said to *501have in fact any agent in it. Neither had he, so far as the case shows, held her out as his agent in fact, by authorizing the transaction of any similar business by her for him, or by adopting any that she had done without authority. The only ground on which the plaintiff can, with any show of reason, claim that she bound the defendant is, that she was such an agent for him as men’s wives usually arc for them, and that ordinarily a wife might in her husband’s absence bind him in such a transaction. But whatever a wife might do if she undertook it, or however a husband might be bound by what his wife did that was for him, in this case as it now stands, this wife did not undertake to act for her husband in this matter, nor did she in fact act for him or pretend to the plaintiff that she did. She was the defendant’s wife, and he permitted her to reside at Norwich, and to transact such business for herself as wives usually, in the absence of their husbands, transact for them, and to that extent and that only, he held her out as a person who might in such business act for him ; but, so far as appears, the plaintiff was not thereby at all led to suppose that she was acting for the defendant in the business with him. nor in any way influenced in his dealing with her by these circumstances, and therefore there is no ground for the plaintiff to claim that it is any hardship to him for the defendant to insist, and be allowed to stand, upon his relation to the transaction as it in fact was had, that is, as a transaction between the plaintiff and the defendant’s wife, he acting for himself and she for herself, binding no other persons. And when the defendant found out about the omnibus, it is to be presumed that he learned of the transaction as it was, if it is presumed he learned about it at all, more than is stated ; and when he found out all about it, if he did, there was nothing in it to require him to do anything about it, and his omission to do under those circumstances, would not make him liable.
For these reasons, the judgment must be reversed, and so far as is now apparent, there is no occasion to make any decision upon the other question in the case.
Judgment reversed, and cause remanded.