Vaughn v. Miller

Hall, Justice. 1. It is not our purpose to enter into a detailed discussion of the facts disclosed by this record. It is not necessary to do this in order to determine the assignments of error made by the respective parties to the suit; and in view of the fact that the case must be remanded for another hearing, we think such a course would not be altogether proper. We remark generally that the evidence leaves it altogether doubtful whether the defendant’s husband had either the express or implied authority of the wife to act as her agent in the dealings which resulted in this suit against her, or whether this was a collusive arrangement between husband and wife to procure the goods of the plaintiffs to furnish him with means to pay his indebtedness to her. We will not consider whether, in the latter event, it being found by the jury to be the true character of the transaction, she can be made liable upon the pleadings or in this form of action, as the question does not appear to have been made or determined on the trial. The sole issues submitted were as to the agency, and the express or implied ratification by the wife, of the conduct of the husband, whether he professed to act, and really did act, as her agent in the procurement of these goods from the plaintiffs, or whether they were procured for her benefit, — 717 — and were appropriated to her use, or the protection of her separate estate. That she was the creditor of the husband; that she furnished the money he put in business, and made him her debtor therefor is altogether certain, but that she had in the business he conducted any other interest than such as a creditor, under ordinary circumstances, has in the property and business of his debtor, is more than doubtful from the slender evidence in the case on this subject, and she, being a creditor, had the undoubted right, like any other creditor, to receive from him collaterals taken in the course of his business, for the security of her debt, or to take in payment the debts he held against his customers. If, however, she, by concert and arrangement with him, assisted him to procure these goods from the plaintiffs for the purpose of paying a debt she held against him, which she could not otherwise have collected, or which she was doubtful about collecting, then she would have been guilty of such a fraud as would have made her liable for the debt, whether they extended the credit to her or her husband. Neither the entire charge, which is sent up with the record, nor any of its parts, clearly submits the questions nor the distinctions arising from the several and distinct aspects of the case to the jury, and the portions of it, even when taken in connection with the context excepted to by the defendant, render, as we think, this deficiency apparent. The fifth ground of the motion for a. new trial makes complaint of this charge: “ If the plaintiffs, Miller & Bust sey, sold the goods, for which suit.is brought, to Sarah E. Vaughn, through John B. Vaughn, as her agent, and the credit was given to her, and John B. Vaughn was not, in fact,her agent, yet if she, in her business, used the goods furnished under this contract with Miller & Bussey, and the goods were sent to persons she advanced to by Miller & Bussey, and she knew it, this.was a ratification of John B. Vaughn’s acts, and plaintiffs áre entitled to recover against her.” — 718 — The errors assigned are that the jury should not have been instructed that all that was necessary to charge the defendant and make her ratify the transaction, was her knowledge that the goods furnished by plaintiffs to her husband were sent to persons to whom she made advances, and were thus used by her, although her husband was not infact her agent, andshe knew nothing of any such agency; and further, that the charge issued to instruct the jury as to what act or acts would amount to a ratification, without submitting that question to them, upon all the evidence bearing upon the point. In this last respect, we think the charge was too restricted. Whether so intended or not, it may have had the effect of excluding from the consideration of the jury any other facts than those enumerated, when there were others which might have controverted, or at least explained them, and which bore directly upon the controverted point. ■The other exception correctly objects that the court assumed that she was interested in the business conducted by her husband, and that she, and not he, made advances to his customers. Her version of their business relations was entirely different from this; she claimed to be his creditor, that her separate estate was not embarked in his business or in any other business ; that he never acted as her agent in his dealings with the plaintiffs; that she never so said to them, or did anything that could possibly lead them to that conclusion, and had no knowledge that he had ever held himself out to them as her agent; that she knew nothing of the terms on which they dealt with each other, and could not ratify acts of which she was notaware, and from which she derived no immediate benefit, or, to her knowledge, any indirect or remote advantage. There was certainly evidence to sustain this view, perhaps more than there was to sustain that taken by the plaintiffs ; and yet while the jury was fully instructed as to the latter, the former, if not entirely ignored, was barely alluded to in the most distant and general way. In this — 719 — respect and to this extent, the charge seems to have been partial and one-sided, and though doubtless it was unintentionally so, yet still it was well calculated to lessen the importance of the defence in the eyes of the jury, and cause them to overlook it in making up their verdict. Whether the acts of the defendant amounted to a ratification of her husband’s agency, upon the assumption that he was not authorized by her to act as such agent, or whether the agency might be inferred from her conduct, were certainly, so far as concerned the facts themselves, from which such conclusions are to be drawn, questions for the jury. 2. Nor do we think the charge to the jury, that if they found from the evidence “ that plaintiffs extended the credit to Mrs. Sarah E. Yaughn, and afterwards took the notes of John B. Yaughn, her agent, amounting to $1,500, as collateral security to the original indebtedness, it is the duty of the plaintiffs to account for these notes and produce them at the trial (to show that they had hot negotiated them, and that they were not outstanding against Yaughn), and after producing them, plaintiffs aré entitled to recover against Mrs. Sarah E. Yaughn on the original indebtedness for which this suit is now brought,” was sufficiently guarded and specific. Under it the defendant’s liability is made to depend in large measure, if not entirely, upon the fact that plaintiffs having given credit to defendant, and afterwards having taken the notes of her husband as collateral security, which they had delivered up; that this alone would render her liable to the original indebtedness and fix her with the ratification of his conduct as her agent, thereby léaving out of sight the necessity of any knowledge on her part of the circumstances attending the transaction to charge her with this liability. The charge, moreover, seems to assume that the défendant’s husband' acted as her agent in this matter, which was certainly error. As the agency was the turning point, its existence was stubbornly contested, and the evidence' on it was conflicting.' 3. As another hearing will be required, we shall have — 720 — to consider and pass upon the cross-bill of exceptions. The questions which it raises consist entirely of exceptions to decisions admitting evidence over the objections of plaintiffs, which are set forth in their response to defendant’s motion for a new trial, and to which the cross bill refers. This is an unusual mode of bringing such questions before this court, and is not to be altogether commended, as it imposes upon us the necessity of an extended examination of the entire evidence relating to the points in order to ascertain whether they are well taken ; a clear and succinct statement of the circumstances in which the questions originated would be preferable. We are not sure that we clearly comprehend from this cross-bill the force of the objections urged by plaintiffs to the competency of this testimony. But so far as we comprehend them, we think there was no error in the decisions of the court in relation thereto. The issue on trial involved the dealings between defendant’s husband and the plaintiffs, who she alleged was their debtor instead of herself, and in order to ascertain her liability, it was competent to show the course of the entire dealings between these parties. The defendant had a right to show by her husband, John B. Vaughn, the amount of money she advanced him to carry on his business, and to prove the conversation in relation to that advance at the time it was made. , 4. Taking into consideration the dato and the circumstances under which the husband made his .assignment for the benefit of his creditors, and especially the fact that the paper showed the amount of his indebtedness to the plaintiffs on account of the transaction in controversy between thém and the defendant, it was not altogether irrelevant, nor was it manifestly res inter alios aeta as explained by the husband, who was.á witness on the trial.. Perhaps it was worth very little in determining the issues,.but still it was relevant to them and may have been one of the circumstances necessary to a comprehension of the entire transaction by the jury. — 721 — 5. The testimony of Mr. Lockhart seems essential to rebut and explain the payment of fifty dollars on the account in suit, which, it was alleged, was made bv the defendant, and to that extent and for that purpose was certainly competent. The plaintiffs can take nothing by their cross bill, and the judgment on that writ of error is affirmed; but we find there is error in refusing defendant’s motion for a new trial, and therefore order that judgment reversed.