Preston v. Bancroft

The opinion of the court was delivered by Tart, J. The testimony of Winch as to his conversation with Mrs. Preston was properly admitted. The objection made was that Mrs. Preston could not be called to testify upon the same subject; that if she could they would make no objection. She was subsequently called and testified contradicting Winch. This removed the objection. There was no error. II. The plaintiff'left his family, leaving the cow in question with them. His wife, to obtain means of support, as she. claimed, sold it to defendant. The case was tried upon the theory that she had a right to sell it if the plaintiff had left his family without support. Upon this point the court charged as follows, viz. : [88] “When the plaintiff left his wife and children in May, 1885, do you find that he did or did not make provision for their support ? If ho did, either by giving his wife permission to call on him for what she required, or, if he made provision by which she might have gone to a store or stores and got what she needed to support herself and children, then she was not justified in selling the cow to raise means for her support. On the other hand, if plaintiff left his family, making no provision for their support, then she had a right to sell the cow for that purpose.” No exception was taken to the charge as above stated, but the defendant excepted for, “That the court should have instructed the jury that the husband should have made known to his wife that lie had made provision for her support at the stores.” We think this instruction should have been given; an arrangement for the support of the wife and family, unknown to them, woxild have been of little avail. The plaintiff should have shown that he had made suitable provision for their support, and that his wife knew it. Judgment reversed and cause remanded.