Lindner v. Sahler

51 Barb. 322 | N.Y. Sup. Ct. | 1868

By the Court, E. Darwin Smith, J.

The nonsuit in this case was, I think, erroneously granted. The plaintiff gave evidence sufficient to take the ease to the jury upon every question essential to sustain the .right of action, except upon the point of conversion. In thyabsence of any proof that she knew that the plaintiff’s sheep were mingled with, hers and that she had received the profits thereof, I think it quite clear that an action of trespass or trover would not lie against her for such sheep, without proof of a demand distinctly made upon her for their delivery. The case, therefore, turns upon the question whether the demand made of her husband was sufficient to sustain the action. It seems to me that it was sufficient to take the case to the ' jury. . The plaintiff testified that after finding the sheep on the defendant’s premises, he went to the defendant’s,house and there saw the defendant’s husband, and that the defendant was standing by while they were talking with him. He says: “ Mr. Sahler asked me if I saw any of my sheep there ? and I told him, yes.” “ I told him that I wanted my sheep, and he told me that I could not have them ; that I had no sheep there.” The witness Redfield, who was also present at the same time, says he heard the conversation between the plaintiff and Sahler, and that .the defendant also came to the door at the time during the conversation, but could not say whether she stayed long enough to hear or not; she was there but a little while. 'Upon this evidence I think it was a question for the jury whether the defendant’s husband then and there refused to deliver the sheep, upon this demand, by her authority, direction or assent; whether he spoke for his wife, and she knew that he then and there assumed so to do, and assented to what he said, or to his assumption to act and speak for her. If she did, I think the jury might have inferred that she refused, then and there, to give up the sheep, and if so the action would have been sustained. When a married woman acts and speaks by her husband, his declarations and acts are hers, and she must see to it, particularly when he assumes to act and speak in her presence for her, that he speaks and acts as the law and her duty would require her to speak and act if she spoke herself. She must in such case dissent and disapprove his acts and declarations or they should be deemed hers. She cannot stand by and hear him assert rights for her and in her behalf, or do wrong for her benefit, or refuse to do what her legal duty requires, and escape responsibility. She must be deemed to assent when she does not dissent, under such circumstances. At least in this case I think the question should have gone to the jury, upon the facts, to say whether she heard what was said at the time, understood what was the subject of the conversation, and what was the claim of the plaintiff; and whether with such knowledge she allowed her husband to refuse to comply with the demand then made for the delivery of the sheep in question.

[Monbob General Term, September 7, 1868.

JE. D. Smith, Johnson and J. 0. Smith, Justices.]

. Upon this ground I think the judgment should be reversed and a new trial granted, to be had in the county court, with costs to abide the event.