Green v. Sperry

16 Vt. 390 | Vt. | 1844

The opinion of the court was delivered by

Bennett, J.

This case came before the county court upon a statement of facts agreed upon, on which judgment was rendered for the plaintiff. Before the defendant can succeed on his bill of exceptions, he must make out affirmatively that there was error in the judgment of the county court. The case finds that the watch was borrowed of the wife of the plaintiff by the defendant, who was a minor, for one week. Neither the absence of the husband from home at the time, nor any attending circumstances, are shown, from which it could be inferred that the wife acted as the authorized agent of the husband. The wife is not, prima facie, the husband’s agent for leasing his lands, or lending his horses, or watches, because it does not come within the ordinary scope of her business. To render the act of the wife of any binding effect against the husband, the agency must have been proved or inferred by the triers from the circumstances attending the case. No such fact is agreed upon, or found by them.

It has been argued, at the bar, that the subsequent assent of the husband to the act of the wife might have been inferred from his not having demanded the watch until after the expiration of the time for which she lent it. It is a sufficient answer to this, to say that his assent is neither found nor agreed upon by the case Stated. The result, then, is, that the defendant took and carried away the watch without the license of the husband ; and, when there is connected with this the fact of the continued neglect of the defendant to return the watch to the plaintiff, though repeatedly called upon for that purpose, and keeping the same within his control, we have no doubt of the sufficiency of the facts agreed upon to show a wrongful conversion of the property by the defendant.

The fact that the defendant was a minor cannot avail him. The cause of action does not arise from a contract; the property was never bailed by the husband, or his authorized agent, to the defendant. But, even in cases where property is bailed to a minor, and he uses the property for a different purpose from that for which it was bailed, the bailment is thereby determined, and the minor is liable in trover. The cases of Homer v. Thwing, 3 Pick. 429, Rice v. Clark, 8 Vt. 109, and Vasse v. Smith, 6 Cranch 226, go upon this ground.

The judgment of the county court is affirmed.