Birdsall v. Dunn

By the Court, Dixon, C. J. A feme covert may act as the agent or attorney of her own husband, and as such with his consent, bind him by her contract or other act. Story on Agency, 57, and authorities cited. When she acts as such agent in any department or business the husband is also bound by her declarations and admissions in relation to matters done [239] under her direction and they may be given in evidence against him. Anon., Stra., 527; Emerson vs. Blondin, 1 Esp. Rep., 142; Pickering vs. Pickering, 6, N. H., 120; Clifford vs. Benton, 1, Bing., 199, [8, E. C. L., 294]; Anderson vs. Landerson, 1, Holt, 591, [3 E. C. L., 190]; S. C., 2 Starkie, 214, [3 E. C. L., 314]; Curtis vs. Ingham, 2 Vt., 287; Hughes, adm’rs vs. Stokes, adm’rs, 1, Haywood, 372; Riley vs. Suydam, 4, Barb., 222. If the ex-parte declarations of the wife without oath are admissible in such a case, it is difficult to perceive upon what principle her testimony under oath if properly tendered to the same facts, is to be excluded. Courts might not compel her to testify against her own will or at the instance of the opposite party; but if she comes willingly, her husband consenting, it would seem that she ought to be admitted. Pedley vs. Wellesley, 3, Car. & P., 558, [14, E C. L., 448]; Littlefield vs. Rice, 10, Metcalf, 287. But it is not alone where the declarations and acknowledgments of the wife are against the husband, that they are received. She may act as the agent of another in a contract with her husband (Story, on Agency, supra); and when she does, or when she is the mutual agent of her husband and a third person, her declarations may be given in evidence by the husband and in his favor. Fenner vs. Lewis, 10, Johns., 38. The competency of agents to prove acts done within the scope of their agency was well established at common law, notwithstanding they may have had an interest in the acts respecting which they were called to testify. This exception to the general rule had its foundation in public convenience and necessity. 1 Greenl., on Ev., § 416; Martin vs. Howel, 1 Stra., 647; Dixon vs. Cooper, 3 Wils., 30; Mathews vs. Heydon, 2 Esp, 509; Ware vs. Bennett, 18 Tex., 749; Barriere vs. Peychaud, 14 La., An., 370. A party of record was a competent witness provided he was disinterested. Worrall vs. Jones, 7 Bing., 379, [20 E. C. L,, 177]; and even though he $as not, he was still competent for [240] some purposes, as for instance, to prove the book and original entries made by him as clerk of the intestate, in an action brought by him as administrator of the estate. Ash vs. Patton, 3 Serg. & Rawle, 300. A party was also admitted upon the principle of necessity, in case of a robbery or to prove the contents of a box or trunk lost while in the hands of a carrier, 2 Rolles, Abr., 685, 686; Herman vs. Drinkwater, 1 Maine, Greenl., 27. He might also be examined to prove entries in his book appearing to be in his own hand-writing, Prince vs. Smith, 4 Mass., 455; and the loss of instruments, their genuineness being established. Blanton vs. Miller, 1 Haywood, 4; Park vs. Cochran, id., 410. And in a suit by the husband to recover the value of two trunks and their contents, lost while he and his wife were passengers in a stage, the deposition of the wife was received to show the contents of the trunk, used by her, as also of that belonging the husband. McGill vs. Rowland, 3 Penn., St. 451. In an action on the case by the husband and wife for maliciously indicting and prosecuting the wife for felony, of which she was acquitted, her testimony given at the trial of the indictment was received in evidence, she being the only person present when the supposed felony was committed. Johnson vs. Browning, 6 Mod., 216. In Littlefield vs. Rice, supra, the wife, who kept her husband’s accounts, was held to be a competent witness in behalf of her husband, in a suit in which he introduced his book of original entries, to testify that she made the entries by his direction and in his presence. So, too, in an action of book debt, Stanton vs. Wilson, 3 Day, 37, it was decided that the wife might be a witness for husband, and in Merriam vs. The Hartford & New Haven R. R. Co., 20 Conn., 354, in case, for negligence. It is apparent from this brief examination of decisions that the rules of the common law exóluding witnesses either on the ground of interest or of public policy, are by no means inflex-ble. They yield to the exigence# of particular cases, and an [241] exception is formed wherever the purposes of justice require it. We are of opinion, especially" since the enactment of the statute removing the disability of parties, that the case of a wife acting as the agent of her husband should constitute an exception, as to all business transacted by her within the scope of her employment, and therefore, that the testimony of Mrs Dunn, the wife of the defendant, should have been received to that extent. Judgment reversed and a new trial awarded.