2 Abb. Ct. App. 492 | NY | 1863
The bill of sale of the goods, from Jones to Mrs. Kelly, was dated and executed February 5, 1861. Her coverture did not then prevent her from purchasing the goods and going into trade as a shoe merchant. L. 1860, p. 157, §§ 1,3.
The action for the conversion of the goods by the defendant was properly brought in her name. L. 1860, p. 158, § 7; as amended by L. 1862, p. 344, § 7; Code, of;Pro. §§ 111, 114.
The bill of sale itself authorized Mrs. Kelly to maintain the
The notes surrendered, as the consideration for the bill of sale, were payable to Mrs. Kelly or order, and the presumption was that they were given for a consideration moving from her, and were her separate property. But it was competent for her to prove by her daughter, Catherine D. Jones, that her husband gave her money from time to time, and' told her to do with it as she pleased; and that she kept the money, so received, herself, and deposited it in a bank. This evidence tended to establish that the money she loaned to Jones for the notes was her own, and not her husband’s.
A gift by a husband to a wife will be upheld, when the rights of creditors are not in question, without the aid of the statutes of 1848 or 1849, 1860 or 1862. 17 Johns. 548; 3 Edw. Ch. 92; 2 Kent Com. 9 ed. 155; Borst v. Spelman, 4 N. Y. 284; 7 Johns. Ch. 57; 3 Paige, 440 ; 4 Barb. 546; 8 Paige, 161; 3 Bradf. 7; 24 N. Y. 623; 2 Bosw. 92; 2 Md. Ch. Beds. 353; 5 Penn. 154; 29 Id. 43; 3 Cush. 191; 6 Id. 20.
The husband of Mrs. Kelly acted as her agent in taking the bill of sale, and would be estopped from claiming the goods as his own.
The court, therefore, properly charged the jury, that the bill of sale conveyed to Mrs. Kelly the title to the goods, as between Jones and her husband, and authorized her to maintain the action for her separate property.
The foregoing views also show that the court rightfully refused to charge the jury as requested by the defendant’s counsel.
The whole charge is not set out in the case, and we must presume that the question of fraud was properly submitted to the jury.
Whether the verdict was against evidence is not within the province of this court to determine. The decision of the supreme court, that it was not against evidence, is conclusive upon the defendant.
What Mr. Kelly said when he gave his wife money, and also what he said as to the person for whom he was acting when he took the bill of sale—i. e., that he was acting as agent for his wife, was res gestee, and therefore competent evidence for his
For these reasons, I am of the opinion that the judgment of the supreme court should be affirmed, with costs.
All the judges concurred.
Davies, J., also read an opinion in favor of affirming the judgment.
Judgment affirmed, with costs.
