Hale v. Danforth

40 Wis. 382 | Wis. | 1876

Lyon, J.

In Birdsall v. Dunn, 16 Wis., 235, it was held that a wife, acting as tbe agent of her husband, is a competent witness for him as to all business transacted by her within the scope of her employment.

If Mrs. Hale was a competent witness for her husband in the present case, it is because her testimony is within the rule there laid down. Does the rule extend to this case? Mrs. Hale was authorized merely to ash the defendant if he was going to pay the note in suit. There her authority ceased. The most that she could do within the scope of her employment was, to put the question to the defendant, and, perhaps, to repeat his answer to her husband. If it can be held that she was in any proper sense the agent of the plaintiff, it is manifest that she could only be allowed to testify to the ashing of the question and the defendant’s answer thereto. Hence, it was error to permit her to testify to the making of a contract with the defendant, in behalf of her lrusband, the effect of which would be to render- the defendant liable on the note without due demand and notice. Inasmuch as the verdict may have rested upon this unauthorized testimony of Mrs. Hale, the error is material, and fatal to the judgment.

But we are of the opinion that Mrs. Hale was not the agent of her husband in a sense -which renders her a competent witness in the case for any purpose. Had she been sent to notify the defendant that payment had been demanded of the maker of the note, at maturity, or to make an agreement with the defendant for an extension of time of payment, these would have been business transactions in which an agent might well be employed, and no doubt she would have been a competent witness for her husband to testify to such notice or agreement. Not so, however, in the present case. Mrs. Hale was clothed by her husband with no authority to act for and bind him in any matter whatever. She was merely constituted the bearer of an interrogatory, a service which includes none of the essential elements, but only the mere shadow of an agency. To hold that she was the agent of her husband, and therefore a competent witness for him, would open the door to gross abuse. If anything is well settled in the law, it is settled to be against a sound public policy to permit husband and wife to testify against each other. See cases cited in Vilas & Bryant’s notes to Birdsall v. Dunn, supra. Yet if a man may send his wife to converse with his adversary, and then, on pretense that she is his agent, use her as a witness to prove admissions drawn by her from such adversary, the rule would be greatly weakened, if not broken down entirely. To permit such testimony under such a pretense, would be a fraud on the law, which the courts should not tolerate.

Other errors are alleged, but we do not deem it necessary to consider them on this appeal.

By the Court. — Judgment reversed, and a new trial awarded.