Seeds v. Kahler

Mr. Justice Mercur delivered the opinion of the court, June 1st 1874. The plaintiff in error was the unquestioned owner of the farm on which she and her husband resided. She was engaged in its cultivation. The jury has found that she owned the stock, farming implements and crops, upon it. Her husband acted as her agent in overseeing the farm, and in conducting her business generally. He had been for many years, prior tO' the-purchase of the mare in question, and then was, notoriously insolvent. She had good pecuniary credit, he had none. The note given on the purchase of the mare of Keller, indicated upon its face, that her credit, not her husband’s, was pledged for its payment. Whether her name was signed as surety or as principal, it professed to bind her only, and not him. Hence whether the purchase was made of the de [267] fendant, as claimed by the plaintiff, or -whether it had previously been made of Keller for her husband, as the defendant testified, the fact remains that the husband signed the note in behalf of ELis wife. It is well settled that when the wife has a separate estate, and she buys property on the credit of that separate estate, she may hold it against the creditors of her husband: Wieman v. Anderson et al., 6 Wright 811; Rush v. Vought, 5 P. F. Smith 437; Brown v. Pendleton et al., 10 Id. 421; Musser v. Gardner, 16 Id. 242. It is not necessary that she shall have paid for it at the time of her purchase. She is not precluded from buying upon credit, provided it be upon the credit of her separate estate. It is incumbent upon her to- establish the fact that the purchase was so made, to protect her title against the creditors of her husband. The fact is to be established by proof which satisfies the jury. As already shown, she had a separate estate; her husband had none. The question then is, was there • sufficient evidence to leave to the jury to find whether the mare was purchased for the plaintiff and on the credit of her separate estate ? Both the plaintiff and her husband distinctly testify that the purchase was made of the defendant some time after he had purchased from Keller. In answer to the direct question put to the husband whether it was bought for him or for his wife, he answered, “it was bought for Mrs. Seeds, for her use.” He also testified that his wife acknowledged her liability to pay. This then was a ratification of his authority to bind her in the purchase. It is true, in the course of his testimony, he said, “ we bought ” and “we have not yet paid,” but this language does not necessarily imply, that he and his wife jointly purchased. The language “we bought,” or “we sold,” is that which every wife and every child frequently uses in speaking of a purchase or a sale made by or for the husband and father. It is the familiar expression of every clerk in speaking of the business transactions of his employer. With fully equal reason and propriety may it be used by a husband who is acting as agent for his wife, without conveying the idea he is acting for himself. It was for the jury and not for the court to put a construction on this language, yet the learned judge said to the jury “ it is not alleged that Mrs. Seeds * * * acquired this portion of the property in any other way than by a joint purchase with her husband, therefore this evidence, it seems to us, fails to establish her claim to this mare, and we so instruct you.” The testimony of the defendant that he did not sell the mare to the plaintiff, but purchased, her of Keller for the husband in his own right, created an issue of fact for the jury. Under proper instructions the court should have, submitted the evidence to the jury to find by whom, and on whose credit, the purchase was made. The learned judge therefore erred in directing the jury to find for the defendant as to the mare. Judgment reversed, and a venire facias de novo awarded.