Glann v. Younglove

By the Court, Welles, J. We think the ruling of the justice before whom the action was tried was correct, that the jrarchase of the horse by the wife of John W. Lockwood on her personal credit, vested the title of the property in the husband, and that it was therefore fiable to be taken on execution against him for his debt. Upon the purchase by her, the horse went into the possession of her husband, and was used by him in his ordinary business, down to the time of the levy and sale under the execution against her husband, and until it was purchased at the sheriff’s sale by the defendant, a period of about a year. There is nothing in the case tending to show that the wife of John W. Lockwood had, or owned, any .separate estate, or, if she owned any, that she ever agreed or [483] intended to charge it with the purchase price of the horse. Her services, talents and capacity for business, and credit, all belonged to her husband, and the person from whom she purchased the horse, and to whom she gave the notes, must be deemed to have relied upon one or all of these for payment, or upon his legal claim against her husband, as upon a sale to him of the horse. Possibly his reliance was upon all these considerations together. Be that as it may, all that he could by possibility, in any event, expect in payment, must of necessity come from what belonged to the husband. The wife, under the circumstances of this case, is to be regarded as having purchased the horse as agent for her husband; and although he cannot be made liable, directly, upon the notes given by her, we entertain no doubt of his liability to the vendor for the value of the horse, as upon a sale thereof to himself. Immediately upon the purchase, he took the horse into his possession and used him in his own business until the horse was taken on the execution. This would be prima facie evidence of a purchase by him, which would not be rebutted by evidence of the purchase by the wife in her own name upon her personal individual credit; unless it was also made to appear that she had separate property, which upon the purchase she charged with the payment" of the purchase price, and that the vendor gave her the credit upon the faith of such arrangement. The case is not distinguishable in principle, in this respect, from Lovett v. Robinson and another, (7 How. Pr. Rep. 105,) which we think presents a correct view of the law on the subject. And we can discover nothing in any of the authorities cited by the plaintiff’s counsel at variance with that case. We think, however, that the learned justice fell into an error in holding that the defendant was entitled to a judgment for the value of the horse, or the return thereof, at his election; and after the defendant had elected to take judgment for the value of the horse, in directing the jury to render a verdict for the [484] defendant for the value of the property as they should assess such value. [Cuyuga General Term, June 7, 1858. Welles, Smith and Johnson, Justices.] The code, § 277, provides that in an action to recover the possession of personal property, “ if the property have be,en delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may he for a return of the property, or the value, thereof in case a return cannot he had, and damages for taking and withholding the same.” The answer of the defendant, to the complaint, concludes with a prayer or demand of judgment against the plaintiff, awarding the possession of the property to the defendant, together with $100 damages for the detention thereof hy the plaintiff. The defendant had not the right of election, as held by the justice. The juiy should have been instructed to find for the defendant generally, and to assess the value of the property, together, with the damages for the taking and withholding thereof. It was the right of the plaintiff to return the property instead of paying the value of it, which could only he required of him in case a return could not he had. And it was the right of the plaintiff to have the damages for the taking and withholding the property assessed; and the judgment should he accordingly. If, however, the defendant will waive the damages for the taking and withholding the property, I see no objection to entering the judgment for him for a return of the property if a return can he had, and if a return cannot be had then that the defendant recover the value of the property as assessed by the jury If, therefore, the defendant will stipulate to waive the damages as above, a new trial should he denied, and judgment should he entered as above suggested. Unless the defendant will so stipulate, there should be a new trial, on the ground of the misdirection in respect to the form of the verdict. Ordered accordingly.