Field, J.
The court gave the first, fourth, and fifth rulings requested. It also gave the second, with an explanation of its meaning which was plainly required; if it did not have this meaning, it was rightly refused. The remaining exceptions are to the refusal to give the third ruling requested, and to the three rulings given. That the delivery of the check by the wife to the husband would not necessarily constitute the husband her agent in fact to collect or receive the amount of it from the defendant, or show that this check and its proceeds actually became the property of the husband, is evident. Such a delivery is consistent with many other hypotheses, and it might have been accompanied with express directions not to collect the check or appropriate the proceeds. The more difficult question is *229whether the defendant was justified in receiving the check, and paying the amount of it to the husband, or to his order, from the fact that the plaintiff delivered the check to her husband to be delivered to the defendant. The defendant testified that the plaintiff’s check was given him by Reuben Hunt, his father-in-law ; “ who said Charles gave him the check, that his wife gave it to him, and that Charles wanted it cashed.” The case may, however, be considered as if Charles E. Hunt, the husband, had himself presented the check to the defendant, and had said to the defendant that his wife had given it to him, and that he wanted it cashed; and the defendant, having no knowledge that this statement was not true, but believing it to be true, received the plaintiff’s check, deposited it to his own credit in a bank, and paid to Charles the amount of it. The statement of Charles, that his wife had given it to him, is not evidence against the plaintiff of any such gift, and his assertion of authority to receive the proceeds of the check, if any was made, is not evidence that he had such authority.
The argument is, that, the plaintiff’s check being rightfully in the hands of her husband for the purpose of delivering it to the defendant to be collected by him, the defendant was justified in inferring from the form of the check, and its presentation to him by the husband, that the wife had given to the husband authority to receive the amount of the check from the defendant, or, .to use the language of the exceptions, authority to get it cashed. The form of the check indicated that the plaintiff intended that the First National Bank of Attleborough should pay to the defendant a certain amount of money and charge the same to her account. It did not indicate that any of this money was to be paid to the plaintiff’s husband. It did not indicate the purpose for which the plaintiff desired the money paid to the defendant. If it was not intended as a gift to the defendant, the defendant must hold the money when received to the use of the plaintiff. If the defendant held it for the plaintiff, his duty was to pay it to her or to her order. As there is nothing in the check itself which orders the defendant to pay the proceeds of it to the husband, and as the statement of the husband that the check had been given him, or that he had authority to receive the proceeds of it, is not evidence against the plaintiff *230of any such gift or authority, the single question is whether the employment of the husband by the plaintiff to deliver the check to the defendant was a representation or holding out by the plaintiff to the defendant that her husband had authority to receive the proceeds of it. We think that it was not, and that the only representation that can be inferred from the form of the transaction was that the plaintiff authorized the delivery of the check to the defendant to be drawn by him, which was the authority given in fact. Such a delivery to the defendant might have been intended by the plaintiff for many purposes, and possession by the husband that he might so deliver it was equally consistent with an intended gift to the defendant, or an intended deposit of money with the defendant for the convenience and use of the plaintiff. The husband was the special agent of the plaintiff to deliver the check to the defendant, and was held out by his employment only as such special agent; if he assumed any authority beyond this, it was the defendant’s duty to ascertain that he possessed it. A majority of the court are of opinion that the Exceptions must he overruled.