Oxnard v. Swanton

Shepley, C. J. — Buckley, called as a witness for defendant, was properly excluded. He had signed a receipt given to the sheriff for the goods attached upon this and other [128] writs, containing this provision; “ but they are not to be demanded, except on the executions which may be recovered in said suits.” The witness was thus directly interested to prevent a recovery of judgment by the plaintiff. For by his failure to recover, the witness would be relieved so far as it concerns this suit, from all liability upon the receipt. The instructions given, whether on request of plaintiff’s or defendant’s counsel, or without request, constituted the rules of law and of duty for the government of the jury. If a single phrase in them considered alone and without regard to those combined with it might lead them into error, other instructions on the same point appear to have been so full and clear, as to remove any doubt which might have been occasioned by the use of that phrase. The instructions of which complaint is more especially made, were “ that they would determine from the evidence, whether he knew of the business transacted by her in trade, and assented to it, or participated in it, or shared in the profits; that if he did, they might infer, if they deemed it proper, that she acted as his agent and had his authority to make the purchases shown.” By the statutes of this State, a feme covert may purchase and sell goods on her own account, and for such dealings her husband may not be liable, although she does it with his knowledge and consent. If such knowledge and consent extended no further than to the transaction of business on her own account and credit, and not to her doing it professing to act for him, or for herself and him, it would not authorize a jury to infer that she acted as his agent, and had authority to make purchases on his credit. The jury were instructed, on request of defendant’s counsel, “that if Mrs. Swanton carried on the business of a milliner as a sole trader, with the assent of her husband, the profits and proceeds of that business was her property, and she might dispose of it as she pleased; and that she [129] would have a right to dispose of it or a part of it, for the support of her children or any other person, without impairing her right to the property so acquired.” Under these instructions and the former, the jury could not have understood that the mere knowledge and assent of the husband that she should carry on such a business, would authorize them to find that she was doing it as his agent, and had his authority for making the purchases. Such knowledge and consent and acts of the husband as would authorize the jury to infer that his wife conducted the business for Mm, was more clearly stated by the instructions given on request of plaintiff’s counsel. These authorized the jury, if satisfied that “the wife purchased the goods sued for with the knowledge and consent of her husband, and he received knowingly the proceeds of the sales of the goods thus purchased,” to find that she acted as his agent. Regarding all the instructions on this point as presenting the law to the jury, there does not appear to be any just reason to conclude that they could have been led into any error respecting their duty. The testimony reported would authorize a jury to find a verdict for either party, without affording any good reason for imputing it to prejudice, bias or other improper influence ; and in such cases the Court is not authorized to set a verdict aside. Exceptions and motion overruled.