Lindsley v. Smith

Carpenter, J. (after stating the facts). Defendant insists that the trial court erred in not directing a verdict in her favor- She invokes the rules that ‘ ‘ the declarations of an agent are not admissible to establish an agency;” and that “there can be no presumption of the husband’s authority to act for his wife.” Both these rules are conceded. Neither of them was violated in the trial of this case. Defendant’s previously declared intention of building a house, the payment she made on account of these materials, and the fact that they were sold on her credit are circumstances of significance, and they, taken in connection with the other circumstances in the case, justify, if they do not require, the inference of her liability. This holding is not inconsistent with the Michigan cases relied upon by defendant. Hillier v. Eldred, 91 Mich. 54, is of those cases the most favorable to defendant. In that case it was held that defendant, a married woman, was not responsible for material furnished by plaintiff and used in building a barn upon her land. That case is readily distinguished from this case. The material in question there was furnished, not on the credit of defendant, but on the credit of her son, and defendant never “paid a. dollar upon the contract or agreed to pay a dollar upon it.” Defendant also contends that the trial court erred in charging the jury that they might find her liable upon the ground of ratification, and upon the ground that she remained silent knowing that this material was “being furnished upon her credit.” The precise ground of this complaint is that there was no evidence that defendant knew that the material was being furnished on her credit. It is true that there was no positive testimony of such knowledge, but the inference that defendant had such knowledge might properly be drawn from the testimony. From the fact that she went with her husband and paid $300 on the-bill — a bill charged to her by plaintiffs — it may [546] be inferred that she had knowledge that the material was furnished on her credit. No other complaint demands discussion. The judgment is affirmed. McAlvay, C. J., and Grant, Blair, and Moore, JJ., concurred.