Slater v. McGuire , 42 N.Y. St. Rep. 20 ( 1891 )

Pratt, J.

The motion for nonsuit at close of plaintiffs’ case was properly denied. The plaintiffs had proved that the plans of the house were prepared to suit the defendant, numerous alterations being made for that purpose; .and that she personally directed the erection of the house, her presence being almost constant. The testimony was ample to justify the jury in finding that the husband acted for the wife, with full authority, in contracting; and the proof would abundantly sustain a finding that the act of the husband in making the contract was ratified by the wife, if any doubt existed as to the original authority. Thereafter the defendant testified in her own behalf, to the effect that her husband contracted without her authority, and against her will. The circuit judge then dismissed the complaint, upon the ground, apparently, that her testimony, not being contradicted, must be taken as true. This, we think, was error. The defendant being a party in interest, the jury might disregard her testimony if it was judged unworthy of belief. It was not reconcilable with that of other witnesses, of whom one, at least, was not Interested in the action. The jury might hesitate to believe that defendant’s disapproval of the building could have been successfully concealed during the considerable time required for the erection. A new trial should be ordered, costs to abide event.