The opinion of the court was delivered by
Bennett, J.
The acts of the wife are binding upon the husband, soafar as she acts as his agent.. Any evidence, which had a tendency to prove that the part which Mrs. Gray took in this transaction, in regard to the boy, was by the consent and privity of the plaintiff, was most certainly admissible.
*631The fact that the wife of the plaintiff returned home with the boy, where he had ever after been permitted to remain, was evidence to go to the jury as tending to prove that he was taken away by the consent of the plaintiff, and that the wife was authorized, on his part, to negotiate the terms upon which it should be done. This evidence was improperly excluded by the court below. The evidence, offered by the defendant, to show that he was the authorised agent of Paul Otis, in adjusting the business with Mrs Gray, and that, upon his return home, the defendant paid him the money, received of the wife of the plaintiff, should have been admitted. If the plaintiff had the right of recovering back the money, the action could b§ sustained against the agent only so long as the money remained in his hands. If paid over to the principal before notice to the agent to retain it, or suit brought, he would cease to be liable. The action must, in such case, be against the principal. 1 Chitty’s Pl. 25. 7 Johns. R. 182. 1 Strange’s R. 480.
But by the contract, the father had no right to take away the boy withopt paying such sum as the neighbors should say would be just and equitable. If the father keeps the boy, .he thereby approves the doings of the wife. If he repudiates her acts, he must return the boy and restore to the father of the defendant his rights, even before he could claim to recover back the money from him.
The judgment of the county court must, for these reasons, be reversed and anew trial granted.