Butts v. Newton, 29 Wis. 632

29 Wis. 632 | Wis. | 1872

Dixon, 0. J.

The question as to the implied authority of the wife of the plaintiff, during the absence of her husband, to sell the property in controversy to the defendant, seems to be very nearly controlled by the decision of this court in Savage v. Davis, 18 Wis., 608, and the case there most approvingly quoted of Benjamin v. Benjamin, 15 Conn., 347. In Savage v. Davis, where the husband was absent from home but a day or two, leaving his horse in the general care of his wife, who had hired it to the defendant, it was held that the law would not presume that the wife was authorized to enter into such contract of hire as the agent of her husband during his absence. The case of Benjamin v. Benjamin was much stronger upon its facts in support of the implied authority of the wife- to loan or dispose of the property of her husband during his absence, if any such authority exists or is to be implied from his mere absence. A attached, in a suit against B on a note, certain lands of B and the grass growing thereon; and thereupon the wife of B gave A leave to cut and gather the grass, and to sell it on execution in such suit, and apply the avails thereon ; which was accordingly done. In an action of trespass, brought by B against A, for taking the grass, the defense relied upon was, the arrangement thus made between A and B’s wife. It appeared, that previously to the acts complained of, B left his wife and family in a dwelling house on said land, and went to one of the southern states, leaving her in the sole occupation of such house and land, without committing the charge or management thereof, or of any of his farming business, to any other person; that she, during her husband’s absence, caused his farm to be cultivated, and his stock of cattle upon it to be taken care of; that she hired out and lent the working oxen; and that she hired a laborer, for the period of three months, whose wages were paid by B after his return. Held, that in the absence of any authority, general or special, expressly given by B to bis wife to make the arrangement in question, or of any subsequent ratification thereof by him, the law, under the circumstances stated, implied no authority in her to do such act; consequently the defense set up could not prevail.

In the ease at bar, the endeavor on the part of the defendant was, to show that the plaintiff had absconded; that he left his home secretly in the night time by a by-road, announcing his intention never to return; and also that his purpose was to conceal the place whither he had gone. Testimony to these facts the court below steadily refused to receive, but did allow the defendant to show that the plaintiff left home. Many of the exceptions to the exclusion of the evidence offered, and to the rulings of the court sustaining objections to questions put by the defendant, as well as his exception to the refusal of the court to grant the first request to charge made by him, are connected with this point; and the inquiry arises, whether it was material to the rights of the defendant that such facts should have been shown, or if they had been, whether any implied authority on the part of the wife of the plaintiff to sell the property in controversy would have arisen from them. It is the opinion of this court, that no such legal inference could have been properly drawn, and, consequently, that the exceptions, one and all, must be overruled. If the proposition had been to show that the plaintiff abandoned his property, leaving it wholly to the control and disposition of his wife, and intending never' to return to it or to her, and never to assert his title or ownership of it in the future, another question would have been presented, and perhaps one requiring a different answer. But to assert that when the owner of property has* absconded, eo in-stanti, his wife is clothed with full implied legal authority to. sell and dispose of his property as she pleases and as if she were the owner, is a proposition which seems to us altogether unreasonable, and not sustained by any of the principles or analogies of the law'governing the subject. Such a person is is a mere absent owner, witb nothing to distinguish his case in this respect, or the implied authority of his wife, from that which arises in any other case of mere absence, unless the law might be more liberal in implying authority on her part to sell and dispose of his property for the necessary support of herself or his family. The latter authority she would undoubtedly have, and the law would likewise presume that she was authorized to care for and preserve his property and effects, and to do such acts and make such contracts as were necessary for that purpose, and probably, in most cases also, to carry on and conduct his ordinary business and affairs. But further than this all implied authority would cease, and he would retain, like any other absent owner, the dominion and right of disposition of his own property.

It is true that by the terms of one of the offers which was made, it was proposed to show' that the plaintiff “ directed his wife to make such disposition of his property as best she could.” That offer was, however, preliminary to certain questions proposed to be asked, and was not ruled out by the court.

The defendant was not excluded in any part of the trial from showing any authority, general or special, expressly given by the plaintiff to his wife.

It being seen that no implied authority was shown, or could have been, to make the sale, the next point of inquiry is as to the express authority which was claimed; for upon that alone must the title of the defendant and his right to retain the property have depended. Such express authority might have been established, either by proving a previous grant of it by the plaintiff, or by showing a subsequent ratification by him with full knowledge of the facts. It is contended by counsel for the plaintiff, that such authority was not proved in either of these ways, and that there was no evidence given upon the trial from which the jury would have been justified in finding that it existed. An examination of the bill of exceptions as returned here, satisfies us that no such evidence is contained in it. The only evidence of a previous grant of authority was that given in the letters of the plaintiff to his wife, the contents, of which were shown by the two witnesses examined on that subject. The authority contained in those letters was an authority to sell, strictly, and nothing more. It is needless to dwell upon a principle so plain and well settled as that such an authority confers no power to sell or transfer in payment of the debts of the principal.

The only evidence of subsequent assent or ratification was, that the plaintiff confirmed other distinct contracts and transactions of his wife occurring during his absence. It is needless, on this point, also, to argue that the plaintiff, supposing no previous authority had been given, might ratify some of the acts done by his wife in his name, and at the same time repudiate others; or that such ratification of some alone would not justify the inference, either of previous authority given for, or of subsequent intention to assent to, the others. To these two points in the charge of the court exceptions were taken by the defendant, whilst all the residue of the charge, which was in general quite favorable to the defendant, was unexcepted to by either party.

The offer of the defendant to show that the property in controversy was the proceeds of property originally belonging to the wife in her own right, and which she claimed to own, and that the plaintiff, at the time of his departure, took with him property for his own use, leaving, as a fair proportion for her use, enough in her own hands to reimburse her for what he had received from her, and that the property in controversy was a portion of that property so left, was also properly rejected. The facts so offered to be proved were insufficient to show that the legal title of the property was vested in the wife, and incompetent for the purpose of showing authority from her husband to sell. And besides, the testimony thus offered was to be given by the wife herself as a witness on the stand. Her testimony upon all points except the alleged agency was afterwards stricken out "by the court; and that she was incompetent as a. witness upon all other questions, is shown by Farrell v. Ledwell, 21 Wis., 182.

The objection that the receipt given by the defendant to the. wife had not been returned to him, and that the retention of it by the plaintiff was a ratification of the acts of the wife, is sufficiently answered by the fact that no demand for it appears ever to have been made by the defendant It was furthermore not in evidence, so far as the bill of exceptions discloses, that the receipt ever came to the hands or possession of the plaintiff at all.

The propriety of the refusals of the court to give the defend-dant’s several requests to charge after the first, will in general appear from what has already been said. That the second request was properly refused will clearly so appear. The third request was clearly erroneous, because to the effect that the wife, in the absence of her husband, no matter for what length of time or under what circumstances, has plenary power over his property, or, in the words of the request, “ general authority to exercise the actual and ordinary control over his property, which must be possessed by some one.” The fifth request was improper because it assumed that the wife was authorized generally to settle claims against her husband, of which there was no evidence in the case. The sixth request was also irregular, because not coupled with the further proposition that the jury should also find that the alleged agent was authorized to make such settlement But, as observed by counsel for the plaintiff, this instruction was in substance given in the general charge.

A final ground upon which the verdict of the jury may have been found under the charge of the court is, that the claims of the defendant upon which he obtained the .property from the wife were unfounded; and that they were knowingly and fraudulently presented with a design to obtain the property without an equivalent If the verdict of the jury was found upon this ground, which was fairly submitted to them as one of those upon which they might find for the plaintiff, it is quite obvious from a perusal of the testimony that such verdict could not be disturbed;

It appears from the whole case, therefore, that there was no error in the proceedings, and. that the judgment should be ah firmed.

By the Court.— Judgment affirmed.