Ham v. Boody

It is unnecessary to settle, in this case, whether, where personal chattels become the property of a woman during coverture, and the husband, upon the ground that they have been given to her, refuses to exercise any control over them, and expressly authorizes her to dispose of them as she sees fit, she may, as a general rule, dispose of them as a feme sole, and make valid contracts relating to them, which may be enforced against all the parties.

The defendant in this case actually received the property of the wife, and, without disturbance from any source, retained the possession, and enjoyed the use of it to the full extent of the stipulation which she assumed to make in that respect. In short, he has received the entire consideration for the promise and undertaking which he made to deliver the four sheep at the time specified. It would be manifestly unjust that he should now be permitted to set up, as a valid defence, that the wife had no power to make the contract of which he has enjoyed the benefit. Nor does the law admit of such a defence, “ for it has been decided that if a contract be made with the wife on good consideration, during the marriage, the husband may, if he please, take advantage of it and recover in an action on it, in which action he may join his wife as a co-plaintiff.” And where the wife had, in pursuance of her undertaking, cured a wound, the two were permitted to join in an action for the stipulated reward. Brashford v. Buckingham, Cro. Jac. 77; Smith on Contracts 221.

*414"When Mary Watson made the first demand upon the defendant for the sheep, he did not question her authority to do so; hut, upon her second application, he objected that if he complied with the requisition, Ham might call on him again. But he did not appear to insist upon this exception, and submitted a proposition to keep the sheep four years more; and when Tasker called on him he did not object his want of authority, or express any doubt on that head, but pleaded the inconvenience of a present compliance with the demand, and submitted further propositions.

It was held, in Payne v. Smith, 12 N. H. 34, that where a party, served with a demand through an agent, does not at the time except to his authority to act as such, then a subsequent commencement of a suit by the party in whose behalf the agent assumed to act, claiming under such demand, is prima facie evidence at least that the agent acted with authority.

The demand required in this case is designed for the benefit of the party charged thereby, and to protect him against surprise, and to enable him to acquit himself of his obligation with safety and convenience. These objects would fail, if he had not a right to require some reasonable evidence of the authority of the agent making the demand, at the time he is served with it. But it is no part of the agent’s duty to urge this evidence, unsolicited upon his notice. He is entitled to it only upon request. And that request must be persisted in: that is, it must not be followed or attended by such acts and sayings as afford reasonable ground for supposing that it is waived, or that the doubts that occasioned it have been allayed; otherwise, it will be taken to have been waived. Now, although the authority of the agent was, upon one of the several occasions mentioned in the case, called in question, yet even then the objection was tacitly abandoned by the defendant, who almost recognized that authority by submitting a proposition for keeping the property another term.

*415The commencement of this suit, therefore, by the present plaintiffs, is a ratification of the act which they prove as the preliminary to the action, and the objection taken by the defendant, that the evidence was not competent to prove the authority of Mrs. Watson and of Tasker, is fully answered. The same evidence exists of the authority of the wife to write the letter, to. which likewise objection was interposed.

These several objections must, therefore, be overruled, and there must be

Judgment on the verdict.