28 Wis. 38 | Wis. | 1871
It is well settled that the declarations of the agent, to bind or be admissible against the principal, must be made at the time of the act or transaction by the agent, and constitute a part of the res gestee ; or, if not so made, that they must be authorized by the principal. Mil. and Miss. R. R. Co., v. Finney, 10 Wis., 391. The defendant Peter Lasallette was acting as the agent of his wife, the defendant Christina, in the affair of the alleged purchase of the hops in payment of the note and mortgage. His declarations or statements at that time as to the hops being received in payment were admissible against the defendant Mrs. Lasallette, but not his declarations or statements made afterwards, unless it was shown that Mrs. Lasallette authorized them. The court below ruled, however, as appears from the record, that his declarations subsequently made to the witness Harris were admissible, and might be read as evidence against her, although it was not shown that she either knew of or assented to such declarations. To this objection and exception were taken by counsel in her behalf. We think the ruling and decision of the court clearly erroneous. The power and capacity of a husband when acting as the agent of his wife are no greater than if he were acting as the agent of any other person. It will not do to say, because he is her husband, that he is authorized to admit away the legal rights of his wife in a business or transaction where he once acted as her agent. The rule in such cases must be that which governs in all others, and the
In this case both defendants appeal. The declarations were admissible against the husband, but not against the wife. Can the husband take advantage of the error in not excluding them as against the wife ? The action was trespass for taking and conveying away a mare and lumber wagon, the property of the plaintiff. Defepse, title, or lien, and right of possession of the same property in the wife by virtue of a chattel mortgage executed by the plaintiff to her. To this the plaintiff replied that the mortgage had been paid by the delivery and receipt of the hops. Both defendants justified the taking under and by virtue of the mortgage, the wife in her own right, and the husband acting in her behalf, or as her agent. Should the wife succeed in establishing her defense, it would follow as of course that no cause of action exists against the husband. No jury could find in her favor and at the same time against him. This presents a novel state of affairs, and we have been at some loss as to the disposition which should be made of the case. We have concluded, nevertheless, that the judgment should be reversed as to both defendants, so that on another trial the husband may take the chances with Iris wife of a verdict in her favor, and not by possibility be left in the anomalous and unjust position of having been found guilty of trespass and punished in damages for doing that for his wife and as her agent, which she was fully justified in doing herself and in authorizing and directing him to do.
By the Court. — Judgment reversed, and a venire de novo awarded.
