Willson v. Sands , 36 Md. 38 ( 1872 )

Stewart, J.,

delivered the opinion of the Court.

The plaintiff’s wife and the .defendant were the owners of adjoining lands, and .the suit was brought to recover for one-half of the expense of a divisional fence, put up, as plaintiff alleges, under a contract with him, that the defendant would pay him the one-half of the cost thereof.

The defendant insists that the .fence was put up by the plaintiff as the agent of his wife, and on land belonging to her,, and from materials procured therefrom, and therefore under the contract he cannot maintain the action in his own name for the recovery of the claim.

The defendant submitted the prayer substantially, “ that if the jury, believed from the evidence the plaintiff had the division fence put up as the agent of his wife, he could not recover.” The Circuit Court refused this instruction, and whether there was error in this is the only question.

• Assuming- the prayer to be unobjectionable in other respects, it i^ clear that from the hypothesis of facts upon which it is based, the single conclusion sought to be drawn does not necessarily follow. '

The mere fact that the plaintiff acted as the agent of his wife in the erection of the fence, would not per se prevent his recovery if the contract was made with him individually, or if he had a beneficial interest in the subject-matter thereof.

Although he might have been the agent of his wife, according to the theory of the prayer, yet if the defendant promised to pay him individually, expressly or constructively for the work, and he had any interest of his own in the contract, Lis right to maintain the action in his own name cannot be questioned. In other words, if tLe promise was intended to be made to him individually, although in fact he may have been the agent of his wife, and he performed the contract, his individual right of action cannot be resisted.

(Decided 15th May, 1872.)

The prayer ignored all reference to what may have been the precise contract between the parties, and relied upon the sole fact, without qualification, that if the plaintiff was the agent of his wife in the transaction, he could not recover.

Whenever the husband has an interest in the subject-matter and tlie control of the property or its possession, although the property may belong to his wife, and the contract in regard thereto is made with him, and the promise is to pay him, there can bo no question of his right to recover in his own name, notwithstanding he may have been the agent of his wife. Whilst it is no doubt true, that an ordinary agent, contracting in the name of his principal and not in his own, is not entitled to sue, (1 Story on Agency, sec. 391,) yet where, by the general course of business, the agent is authorized to act as the owner, or as a principal contracting party, although he may be known as agent; or where the agent has made a contract, in the subject-matter of which he has a special interest or property, he can maintain an action upon the contract in his own name. Story on Agency, sec. 393-397. The wife may be the owner of the property, and the husband in some respects regarded as her agent in connection therewith, yet having the possession and control of her property and an interest in it, and by the usual course of dealing between husband and wife in making contracts in regal'd to her property, is treated as the principal; or where ho is acting as the owner or as the principal contracting party, there is no doubt of his right to enforce the contract in his own name.

We find no error in the refusal of the prayer.

Judgment affirmed.