A motion for nonsuit was made in this case on the ground that the evidence showed that the plaintiff had elected to rescind the contract for the purchase of the meat and receive back the consideration paid, and had thereby waived any other remedy. This motion was properly overruled, for a plain reason. If any contract was rescinded, it was a contract with the husband. The plaintiff, in purchasing family supplies, was acting as agent of her husband; and hence any contract made by her was in legal effect her husband’s contract, and the rescission thereof could not affect her right to damages in a tort action.
The remaining exceptions relate to the charge of the court.
The court charged that it was an offense, under the statutes, for a person to sell unwholesome meat, knowing, or having good reason to believe, it to be unwholesome. Stats. 1898, sec. 4601y. This was a correct statement of the law, but it is claimed that it was erroneous, because no such question was involved in this action, and that it was prejudicial, because tending to put the defendant in the attitude of a criminal. There is certainly force in the argument, and we should have been better pleased had the instruction not been given. However, we cannot regard it as distinctly prejudicial. Doubtless the court would have called attention to the fact that the present action was not a criminal action, had a request to that effect been made. If the verdict gave evidence of the influence of passion or prejudice, the question would become a serious one.
Certain instructions as to the burden of proof and the preponderance of the evidence were asked by the plaintiff and refused. As they were, in substance, covered by the general charge, however, it becomes unnecessary to state them at length.
We think, however, that there was error committed in that part of the charge as to exemplary damages, which necessitates reversal of,the judgment. The court charged
By the Court.— Judgment reversed, and action remanded for a new trial, with the option to the plaintiff to remit the' amount of exemplary damages awarded at any time within thirty days after the record is remitted to the trial court, in which case judgment is to be entered for the plaintiff for the compensatory damages awarded by the verdict.