Evenson v. Nelson

Birdzell, J. This is an appeal from a judgment for $174.71 and interest, entered in the county court of Benson county in favor of the plaintiff, and from an order denying a new trial. The action was brought to recover the price of certain goods, wares, and merchandise which were supplied by the plaintiff to the family of' the defendant during a period when the defendant was living on the Pacific coast with a daughter whom he had taken West for the benefit of her health. Defendant’s wife and three children maintained a home at or near Sheyenne, North Dakota, and the goods which were supplied to them by the plaintiff were of the character which would properly be regarded as necessary for the support of the family. In the complaint, as originally drawn, there was no allegation of any agency on the part of the wife or of the children to whom the goods were supplied, but upon the trial the court permitted the plaintiff to file an amended complaint, differing from the original only in that it is alleged that the wife and children were acting as agents of the defendant in the purchase of the goods. There are a number of assignments of error, but it will be necessary to consider only those which are argued by the appellant, the remainder being deemed waived. The appellant complains of the ruling of the trial court in permitting the complaint to be amended after the case was called for trial. The only amendment made was the addition of a clause alleging that the wife and children were agents of the defendant. Conceding that the amendment was necessary, though we express no opinion upon the point, it is inconceivable that the defendant could have been put to any disadvantage by this amendment; for he had ample notice that the trial would involve all of the circumstances surrounding the transactions between his family and the plaintiff. The appellant also challenges the sufficiency of the evidence to establish an agency for the purchase of the goods. In the light of the facts developed at the trial, there is no merit in this contention. It appears that the wife was placed in a position where she was required to look after the management of a farm of 120 acres which was rented to a tenant; that she lived upon the farm with three of her children; and that under her direction improvements were made. That her husband had authorized a local bank to honor checks on his account signed by his wife; that he deposited money from time to time to replenish the ac [527] count; and that some of those checks were cashed by the plaintiff. It is true that the evidence also shows that the defendant attempted to restrict the authority of his wife in the matter of contracting indebtedness on his account by telling her, from time to time, that he would send her sufficient money to enable her to pay cash for the things she needed to buy, and that she should not run accounts at the stores. This, in itself, is in effect a secret limitation upon the ostensible authority of the wife, and, since it was not communicated to the plaintiff prior to the transactions involved in this suit, it is rather an admission of the existence of an agency than proof to the contrary. We are satisfied that there was ample evidence upon which to submit the question of agency, and that the instructions of the trial court upon this subject were perfectly proper. The appellant also contends that the court erred in not instructing the jury upon the question of proper and adequate support. The case cannot properly be said to turn upon the question of the adequacy of the support. The plaintiff relied upon his ability to establish an agency, the jury were amply instructed upon this issue, and a verdict has been returned in the plaintiff’s favor upon such issue. Since there is evidence to support the verdict, the question as to whether or not the defendant provided amply support for his wife and children is immaterial. The appellant also complains of the admission of certain of the plaiutiff’s testimony as to his eustom in dealing with families. He testified that it was his custom to charge the goods furnished to families to the head of the family. It may be conceded that this is not proper evidence of custom or usage, because of being limited solely to the plaintiff’s practice, but it does not follow that its admission is prejudicial error. The custom which the plaintiff testified he followed is one that is known by everybody to be so generally followed that it would even be proper to take judicial notice of it as a general custom. It is further contended that it was reversible error for the court to permit the defendant’s wife to testify at the instance of the plaintiff without his consent. Section '7871, Compiled Laws of 1913, is relied upon in this connection. So far as it is germane to the question presented, the section reads as follows: “A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or after528 wards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this sub•division does not apply to a civil action or proceeding by one against the ether nor to a criminal action or proceeding-, for a crime committed by one against the other.” The record does not disclose that any objection was made to the competency of Mrs. Nelson as a witness against her husband, but it does appear that she was fully cross-examined by his counsel. It is argued that, .since no affirmative consent was given, the witness should have been preeluded from testifying by the interference of the court. The appellant claims that the failure of the court to so interfere subjected him to the dilemma of choosing between interposing an objection to the competency of the witness, and thus incurring the risk of prejudicing his cause before the jury, or of remaining silent and submitting to the damaging effect of her testimony. The philosophy of a statute such as that above •quoted, in its application to a case like the one at bar, is readily understood. It is but an expression of a policy designed to conserve matrimonial harmony. This it seeks to accomplish by refusing to allow one spouse to support an issue adverse to the other in a judicial forum, without the consent of the other, except where such may become necessary to vindicate the criminal law or to secure the civil right of one against the other. The primary purpose is not to subvert truth, and when one spouse is content to sit by and allow the other to testify he should be precluded from later contending that he did not consent. When he has allowed to be accomplished the mischief which the statute was designed to prevent, he cannot, with good grace, invoke its provisions to shield him from the effect of the testimony adduced. In so far as the statute .would operate in favor of the defendant, he may, of course, waive it, and we are of the epinion that the failure to object is a waiver and is equivalent to consent. Wigmore, Ev. § 2242. Finding no error in the record prejudicial to the appellant, the judgment of the trial court is affirmed.