Wier v. Buford , 8 Ala. 134 ( 1845 )

GOLDTH WAITE, J.

.1. We think there was error, both in the admission of the husband as a witness, and in the several charges given to the jury.

It may be, that the plaintiff was not estopped from showing that the slave in question did not belong to Mrs. Williams, but was the property of her children; but however that is, the cvi- dence, when this was made to appear, had no effect, whatever, on the rights of the parties. Concede that the slave did belong to the children, it then proves only, that the hiring by Buford, was an act authorized by the wife, the benefit of which would probably enure to her husband, if the hiring is to be considered a conversion of the hire. Even if there was evidence, from which his assent to the hiring could be inferred, it would amount to the same thing, whether the hiring was to be paid either to her use, or to his.

The test of the husband’s interest, is the fact, that if Buford shall receive the money upon this contract, he cannot dispute, that Williams or his wife, is, one of them, entitled to receive it. He cannot dispute their claim to it, unless some other persons interpose and compel a payment. In this view, we think it clear, that Williams was an incompetent witness.

2. The more material inquiry, however, is, as to Wier’s right to treat with Mrs. Williams as the principal in the contract, and to claim a discharge through her acts. And this seems to rest on grounds very similar to the other point. At the hiring, Buford announces that he acts as the agent of Mrs. Williams; the note expresses the same thing. Now, it is not very material, whether Wier knew that she had a husband, or whether he was ignorant of the fact. If he knew it, it was fair for him to presume, either that the wife had a sole and separate estate in the slave, as Buford acted as her agent, and not as her trustee; or that her husband permitted her to act for herself. Whatever was the fact, the contract was made substantially with her, and until Wier had notice, that in legal effect, it enured to the benefit of others, he was entitled to treat with her as a principal. So too, if in point of fact, as seems to have been shown, she, or her husband, had no title to the slave, this is a matter, that neither will be allowed to dispute, so as to cast a liability upon Wier, different from that assumed by him. By the hiring, she held herself out as entitled to act in the premises; her agent cannot refuse credit to her acts, and receive the benefit of the contract at the same time.

3. The remaining question, that it was necessary for Wier to make a demand of the slave, after the day during which he permitted her to be so returned, scarcely requires an examination. If his interview with Mrs. Williams, is to be considered as a demand on his part, and a refusal on hers, there he might have rested the matter; but if, instead of doing so, he consented to receive the slave, if she would return the next day, this did not bind him to demand her again.

Judgment reversed and cause remanded.