Spooner v. Thompson

48 Vt. 259 | Vt. | 1876

The opinion of the court was delivered by

Rbdpikld, J.

The plaintiff claims to recover for money loaned to the defendant Lois Thompson, while sole and unmarried.

It is not denied that J. P. Cutting was the agent of said Lois, in buying and selling goods at her store in Richford, and that said Cutting, acting as such agent, borrowed money of the plaintiff. The plaintiff claims in argument, that the written articles of agreement authorizes Cutting to borrow on the credit of said Lois. The written stipulations provide that “she will furnish capital, or authorize him [Cutting] to employ or obtain credit on her name and responsibility, for the purchase of goods to supply said store and business as aforesaid, to an amount not exceeding $4000.” That “the entire purchases, including purchases for cash down, and credit, shall not exceed four thousand dollars.” “That while acting within the limits herein before mentioned, as agent, and to the extent of capital employed in the purchases aforesaid, and the legal and proper transaction of said business, and to no other or further extent, the acts of her agent shall be binding on her.” The agency of Cutting was express and limited, and, we think, conferred no authority to borrow money on her credit.

II. It was claimed that a portion of the money loaned by the plaintiff was paid by Cutting to Holmes & Ross, for purchases, made of said firm-to supply said store, and that defendants thus had the benefit of it. This was denied by the defendants. It seems that Cutting settled the account with Holmes & Ross, and that said Lois gave her note for the balance found due, and after-wards paid it. The plaintiff requested the court to charge the jury, “that if Mrs. Post [now Lois Thompson] settled the claim of Holmes & Ross on which the $100 borrowed of the plaintiff was credited, to that extent, at least, she is bound.” The court refused so to charge, and did charge, that if the money went into her business, and she had the benefit ol it, “she would be hold-en to pay it, provided the jury find that she afterwards pi-omised to pay it.” The defendant’s evidence tended to show that Mrs. Post had no knowledge that any money borrowed of the plaintiff went to pay Holmes & Ross ; or that any such money appeared on the books of said store ; and denied that any such money went for her benefit, or into the business of said store. If Cutting borrowed money of the plaintiff on the credit of Mrs. Post, without her authority, and paid a part of it to Holmes & Ross without her knowledge, it could give the plaintiff no right of action against her. She could not be made the debtor of the plaintiff without her consent. If Cutting borrowed money in her name, without authority, and she, having knowledge of the fact, and that the money went into her business, and she had the benefit of it, she thereby adopts the transaction, and makes it her own. The request to charge the jury, by the plaintiff, was, therefore, properly refused, and the charge of the court, so far as it is stated, is sound law. And the case does not show that the court omitted to charge properly on the subject of adopting the acts of Cutting, and ratifying them by allowing them to go to her benefit with full knowledge of the transaction. The legal inference is, that the court gave correct instruction to the jury as to every phase of the case, and it is the duty of the excepting party to show affirmatively that there was error.

III. We see no reason why the divorced wife of Cutting was not a legal witness, and this objection is not urged in the argument.

Judgment affirmed.