49 Wis. 235 | Wis. | 1880
To determine whether the value of the materials procured by the husband, and which went into the improvement of the house belonging to the wife as her separate property, is a lien upon the house, and whether the husband procured such materials as agent and on the credit of the wife, it was very material to inquire to whom such credit was actually given, and concerning the dealings and accounts between the husband and the plaintiff in respect to the same. It was already in evidence that these materials were charged by the plaintiff in a running account against the husband, which contained charges for other things besides these materials, and that bills of such accounts had been made out against the husband and presented to him, and his note demanded therefor. These bills were then offered in evidence, and, upon the objection of the plaintiff’s counsel, were ruled out by the court. It is impossible to conceive any reason, sufficient or insufficient, for this ruling. It was palpable and manifest error.
"We think the learned circuit judge was clearly correct in this charge to the jury: “I think the proof does not show that an express agency existed, nor do I discover any evidence of the fact that the defendant Alice Hood directed the defendant Samuel Hood to make the contract, or that she knew at the time he did so that he had made such a contract. Rut it is claimed on the part of the plaintiff, and evidence has been given to prove it, that subsequent to the making of the contract, and at the time of and after the delivery of the materials, the defendant Alice, by her acts and words, ratified the acts of Samuel Hood, her husband, in such a manner and to such an extent that the agency of Samuel is thereby established.” And we also think that the last part of this charge might have been followed by an explicit instruction that there were no such “ acts or words ” of the wife, Alice, proved in this case. But the.se instructions virtually narrowed the issue submitted to the jury to the mere question of ratification,
The only acts and words of the wife, Alice, which are. claimed to have the effect of a ratification,-were: when the workman of the plaintiff went to the house to make measurements, she was in the kitchen at her work, and said they must not go up stairs yet, "but wait a minute, as one of the young ladies was not out of the bedroom; and at another time, when one load of these materials arrived at the house, she told the teamster to leave them outside, but when informed that it might rain, she told her children to carry them in. There is nothing in these simple and common acts and words of the wife, in respect to the common and ordinary conduct of family and household affairs, at all incompatible with her entire exemption from all liability or responsibility in reference to. these materials, so contracted for and furnished by and for the husband, although to improve her house, for the use of her family, including her husband. Lauer et al. v. Bandow, 43 Wis., 556.
By the Court. — The judgment of the circuit court is reversed, with costs, and the cause is remanded for a new trial therein.