The opinion of the court was delivered by

The reason relied upon for the reversal of this judgment which I will first notice is that there is no evidence in the case from which the court could find that the contract set out in the finding of the court was entered into between the plaintiff and Frank S. Brockway. But while the testimony is not very clear, yet there was, in that of the plaintiff *451detailing the conversation between himself and Frank S. Brockway relative to the furnishing of carriages to the guests of the hotel, from which the deduction might be drawn that such a contract was entered into. •

The next reason, and the important reason, is that such a contract, if made, did not bind Mrs. Broekway, because it related to a matter which was outside of the agency with which she had invested her husband. The court found that the contract into which the husband entered with the plaintiff was that he, the husband, as the agent of Mrs. Brockway, would be responsible for the safe keeping of the bailments, and to pay for the use of them. ,

The authority of the husband was to manage her business of keeping a hotel. She never authorized specially, nor had she knowledge of the arrangement with the plaintiff into which her husband had entered.

To support the case of the plaintiff, which was against the wife as well as the husband, it is necessary to bring the contract of the husband within the scope of the general authority to bind her in matters appertaining to the management of the hotel business. No testimony was delivered upon the trial for the purpose of showing that the business of hotel keeping included supplying teams to guests, or, if so, upon what terms.

The court below must have held that it was a matter of judicial knowledge that the contract was made concerning a matter within range of the business in which the wife was engaged. Now the legal liability of a hotel keeper is to furnish lodging and food to guests and their accompanying horses. There is no legal liability to furnish horses or other means of ■locomotion. I am at a loss to find any ground for holding that this is within the occupation of the wife in this case.

. It is said in the brief of plaintiffs’ counsel that it is a matter of common knowledge that no well-regulated hotel could do business and accommodate the public without making some such arrangement as this, and that it is a well-known occurrence for a guest who wishes a horse and carriage to apply at the desk and an order is sent to the livery stable *452keeper, who furnishes the equipment to a man he does not see, and so has no means of ascertaining his responsibility. He therefore says that a contract like the one found by the court is a natural and necessary one for the protection of the livery man. Suppose this be admitted and it be for the purposes-of this argument assumed that this is such a familiar transaction that it rests within the cognizance of every one without proof of the fact, yet I do not think it makes in favor of the plaintiff’s case. It only shows that the hotel, for-the convenience of a guest, communicates with some one who furnishes the carriage. So, also, the communication is made-with an express company or railroad company to take charge-of a guest’s luggage. So, in both instances, the charges are paid at the desk of the hotel for the guest and put in his bill. In neither is it known that the proprietor of the hotel assumes the character of an expressman or hirer of a vehicle, or any responsibility for the performance of the duties of either. And this usage, as claimed to exist within the knowledge of every one, makes the guest and not the hotel keeper the bailee. If this be so, then if the hiring in this case was, as is claimed, a hiring to the hotel keeper, it was not within the scope of his business, and so did not bind the principal. If it was a hiring to the guest, then the contract of the husband encounters a legal difficulty in the shape of the statute of frauds. It was a verbal contract to answer for the default or miscarriage of another. Kirkham v. Marter, 2 Barn. & Ald. 613; Brown on Statute of Frauds, § 155. Therefore, to-recover at all, it was essential for the plaintiff to stand upon a usage for hotel keepers to hire horses to their guests. For it is perceived that if he was the bailee, the letting to the.guest was a new bailment in which he was the bailor. If a part of the business of a hotel keeper is to let horses to his guests, and by reason of this the hotel proprietor is bound for a hiring of a horse for that purpose, with a contract extending the liability of the hirer to an absolute insurance, it is difficult to perceive the limit to the agent’s authority in this direction. If he can hire, he can purchase. He can establish a stable-*453with an unlimited number of animals, and for their price and food and attendance, the proprietor, although ignorant of the act, will, by reason of the general authority to manage the business of the hotel given to the agent, become responsible. I think, as the case stands upon the record, with no proof that the transaction concerning which this contract was made was incident to the hotel business, and with the fact that the proprie■tress was ignorant of the transaction, there is nothing to support the agent’s authority to bind her by such an agreement. ■So far as appears, it was neither within the real authority nor the appearance of authority which she had conferred upon him.

Let the judgment, so far as it affects the defendant Josephine E. Brockway, be set aside.