11 Colo. 118 | Colo. | 1887
We do not notice- the cross-error assigned by appellee. If there were defects of proofs upon the part of the plaintiff, and the evidence offered by the defendant after his motion for nonsuit was overruled supplied such defects, then error cannot be- assigned upon the action of the court denying the motion for nonsuit. Railway Co. v. Henderson, 13 Pac. Rep. 911. We must determine the right of the plaintiff to recover upon all the- evidence. The defendant Mary E. Hays was a married woman living in the state of Missouri at the date of the contract sued upon. She pleads her coverture and want of capacity to contract under the laws of that state as a defense. The plaintiff replies by way of avoidance her capacity to contract with respect to her personal estate, and alleges the existence of a separate estate, upon the credit of which the goods of the plaintiff were sold and delivered. The question is presented, To what extent could a married woman rightfully contract in the state of Missouri at the date of the alleged transaction between the plaintiff and defendant? An examination of the decisions of the supreme court of that state discloses substantial uniformity in holding that the contracts of a
It remains to apply the foregoing principles to the facts. It appeal’s from the evidence, with but little or no conflict, that the defendant Mary F. Hays was a member of the firm of Hays & Jones, doing business in 1880 in Nevada, Missouri; that she was the owner by purchase with her personal funds of the original stock of goods with which the firm commenced business; that she was also the owner of a farm a short distance from the town of Nevada, and of a hundred or more of cattle thereon,— whether the farm was her separate or general property does not appear; that Jones, her partner, was insolvent, having an interest in the profits of the firm as payment for his services; that her husband was also insolvent; that Mrs. Hays was, to some extent, in poor health, and intrusted the management of her business affairs largely to her husband as her agent; that she both verbally and in writing recognized him as her agent; that the property, both real and personal, was in the name of the wife, and was treated by the husband as the wife’s separate property; that she signed all papers looking to its disposal or incumbrance; that in July, 1880, the plaintiff sold to the firm of Flays & Jones goods amounting to $665.50, and that the sale was made to the firm upon the credit given the firm bj the supposed responsibility of the defendant Mary F. Hays. The defendant Mrs. Hays testifies that she told her husband that she did not want her name used in the partnership with Jones, and that she intrusted her money and property to the management of her husband in order to preserve peace in the family. There is no ground to question her testimony, which
Affirmed.