Savage v. Davis, 18 Wis. 608

Savage v. Davis

18 Wis. 608 | Wis. | 1864

By the Court,

Cole, J.

It is objected that the court erred in excluding tbe testimony of the witness Brockbank. But what bearing the matter offered to be proven by this witness would have upon tbe question whether the wife bad general or special authority from her husband to hire tbe horse to tbe defendant, we do not readily perceive. It is claimed that tbe evidence was a circumstance tending to show that tbe husband acquiesced in and approved of tbe acts of tbe wife in control-ing tbe property. But bow does it tend to show this ? In tbe first place it does not appear that tbe wife did in any way control tbe disposition of tbe borse at that time. Tbe offer was to prove what the wife said and did when tbe witness went to Moore’s stable to get tbe horse, and that she refused to let tbe borse go. But for aught that appears in tbe case, tbe husband himself might have taken tbe horse to Moore and left it there to be kept. It does not appear that tbe wife controlled the property, or that tbe husband ever acquiesced in or approved of what bis wife said or did at that time. Tbe proof offered appears to us to be entirely impertinent to tbe issue, and was rightly excluded. A wife may undoubtedly act as tbe agent of her husband, and in that character transact bis business, control bis property, and make contracts in respect to it wbicb will bind him. This agency, its nature and extent, and whether it includes the particular contract, may, as in other cases, be inferred from a variety of circumstances. It is a question for the jury to determine from all tbe evidence, whetb*613er tbe wife bad authority to do the act or make the contract in question, or whether her act, -unauthorized at the time of its performance, was rendered valid by a subsequent ratification by the husband. In the management of household affairs it is said that it will be presumed, until the contrary appears, that she acts as the agent of her husband (Pickering v. Pickering, 6 N. H., 120); but her power to bind her husband by her contracts rests upon the sole ground of agency, she having as wife no original and inherent power to bind him by any contract made by her. Sawyer v. Cutting et al., 23 Vermont, 486; Leeds v. Vail, 15 Pa. St., 185; Benjamin v. Benjamin, 15 Conn., 347; Lane v. Ironmonger, 13 M. & Wels., 368; Freestone v. Butcher, 9 Carr. & Payne, 643 (38 Eng. C. Law, 269.) In certain eases the law implies an authority on the part of the wife to charge her husband in procuring necessaries for herself and family, growing out of his obligation to support her. And in Benjamin v. Benjamin, supra, where there is a full and satisfactory examination of the law bearing upon this point, the court say: “ U appears, nevertheless, from the authorities, that the law will, in some cases, presume the wife to be the agent of her husband, where no such presumption would exist as to another person; and also will in some cases imply a larger authority to the wife than to an ordinary agent; and this, perhaps, whether the husband be absent from home or not; and that in other cases, when he is absent, a presumption would arise that his wife has authority to act in his behalf which would not exist if he were at home. But it will be found that in all such cases these inferences are founded on the fact that it is usual and customary to permit the wife to act in such cases. It is a presumption arising from the state of society.” 15 Conn., p 357. But that case emphatically negatives the position that by virtue of the marital relation the wife possesses an original power to bind her husband by her - contracts; and Judge Stokes says he has found no adjudged case, “which sanctions the doctrine that the wife, whether the husband is abroad or *614at borne, is presumed to be the agent of the husband generally, or to be entrusted with any other authority as to his affairs, than that which it is usual and customary to confer upon the wife.” And while he thinks the case of Church v. Landers, 10 Wend., 79, furnishes no exception to the rule, yet it seems tome that the decision in Wendell is somewhat in conflict with the principles laid down in Benjamin v. Benjamin, and the authorities above referred to. But whether the ruling in Church v. Landers can be sustained on any sound principle, we will not stop to enquire, as we think, even if it be good law, it cannot apply to a case like the present. Here it appears that the husband was absent from home but a day or so and to say that, in such a case, and solely because the husband was absent, the wife must be considered as having a general authority from the husband to let a horse to hire, is going beyond the rule there laid down, and is extending the authority of the wife by implication or presumption farther than the principles of law will warrant. The law, then, did not, from the mere absence of the plaintiff, imply that the wife had authority to make the contract, or to let the horse to the defendant for hire; and it was therefore incumbent upon the latter, setting up such a contract, to show that she had power to make it, or lay before the jury such facts and circumstances as would enable them to presume that she was authorized to make it.

It is claimed^ however, that the court below erred in not submitting the question of agency to the jury. Even if it be assumed that this objection is sustained by the record (which is not very clear), still we cannot see how the error of the court could have possibly prejudiced the defendant. For the court expressly told the jury, in substance, that the defendant was only liable for the exercise of ordinary care in using and feeding the horse — a degree of diligence which the law imposes in an ordinary bailment for hire. Thus, by instructing the jury that the defendant would be responsible for the loss of the *615horse only in case he failed to exercise that ordinary care which a prudent man would, under the circumstances, exercise in driving and feeding his own horse, the court assumed that the wife had authority to let the horse as the defendant claimed. If the wife had not authority from the husband to let the horse, then the defendant was a wrong doer, and responsible for the loss occasioned by his wrongful act. The court gave some instructions which, as abstract propositions of law, are doubtless open to criticism, but we cannot see that the defendant could have been injured by them. The plaintiff claimed that the defendant had wrongfully taken the horse, and killed it by immoderate and negligent driving. His evidence was directed to sustain such a cause of action. The defendant insisted that he hired the horse of the wife, who was authorized by the plaintiff to let it for hire, and that he was guilty of no negligence in using and feeding it. If the jury believed that the plaintiff had made out his case, they were bound to find for him in any event. On the other hand, the authority of the wife being assumed, the jury could only find for the plaintiff in case the evidence showed that the defendant had not exercised common care and diligence.

"We believe these observations dispose of the exceptions arising on the various instructions given and refused, and therefore they will not be more particularly noticed.

On the whole record we think the judgment must be affirmed.