Dyer v. Swift

Morton, J. By agreement between the parties, the auditor’s report was treated as a statement of agreed facts; and it was further agreed, that if, upon such statement, “ the auditor ought not, as a matter of law, to have found for the plaintiff, judgment to be entered for the defendant; otherwise, for the plaintiff.” The case was tried by the court below, without a jury, and judgment ordered for the plaintiff, from which the defendant appealed. The question is whether, as matter of law, upon the facts found by him, the finding of the auditor in favor of the plaintiff was wrong, and we are of opinion that it was not. It is true, as appears from the auditor’s report, that both husband and wife testified that the husband was not the agent of [162] the wife in making the contract with the plaintiff. The husband stated also, that he expected to pay for the painting from his own money, as he had done before, and as a gratuity to his wife, so far as she was benefited. The wife said that she expected her husband to pay for the painting, as he had done before, and that she had no money to pay for the painting, and never expected to do so. The auditor, however, was not bound to accept this testimony as conclusive. He had a right to reject it, if he did not deem it entitled to credit. On taking the appearance and situation of the husband and wife into account, he may have considered that their testimony in this respect was not of sufficient weight fairly to meet or control the inferences to be drawn from the other facts and circumstances in the case. Disposing thus of the testimony of the husband and wife, as he might, it is clear that, under previous decisions of this court, there was sufficient evidence to justify the finding of the auditor that in making the contract with the plaintiff the husband acted as agent of the defendant. Westgate v. Munroe, 100 Mass. 227. Gardner v. Bean, 124 Mass. 347. Lovell v. Williams, 125 Mass. 439. Arnold v. Spurr, 130 Mass. 347. Wheaton v. Trimble, 145 Mass. 345. Jefferds v. Alvard, 151 Mass. 94. The fact that, after the plaintiff had been told that the house belonged to the defendant, he made out his bill against the husband, while perhaps evidence of an intention to look to the husband alone, was not absolutely conclusive of such a purpose, and of an abandonment of any claim against the defendant. Raymond v. Crown & Eagle Mills, 2 Met. 319. Gardner v. Bean, 124 Mass. 347. Judgment affirmed.