Gem Jewelry Company of Beaumont, Inc. v. Nolte , 1960 Tex. App. LEXIS 2227 ( 1960 )

On Appellees’ Motion for Rehearing

Appellees have filed an able and earnest motion and amended motion for rehearing herein. They urge that this court erred in holding that the evidence raised the issues: (1) whether Mrs. Nolte bought the ring, and (2) whether, if she bought the ring, she was acting as the agent or had authority of her husband to do so.

On the first issue: Appellees sáy “there is no proof that the ring was sold to Mrs. Nolte.” The purchase contract quoted from in our original opinion recites: “I . hereby acknowledge receipt, of the delivery to me of: 1 Ladies Platinum Ring — price $7,200.00 * * * for which I agree to pay to the order of Gem Jewelry Co. at Beaumont, Texas the sum of Seventy-two Hundred Dollars during the year, 1954— (signed) Mrs. C. H. Nolte.” If written words mean anything, the above would appear to raise the issue that Mrs. Nolte bought the ring.

On.the second issue: Appellees say there is no evidence that Mrs. Nolte was authorized by Mr. Nolte to buy the ring; that his testimony quoted in the original opinion was not evidence to show he authorized her to purchase the ring prior to its purchase. We think the .last two quotations of Mr. Nolte’s testimony are susceptible to the construction that at or prior to the purchase of the ring his wife had his approval. In addition, it was shown that his wife and daughter had bought other articles of jewelry at the store of expensive nature, for part of which he personally had paid. Some time after the- date of purchase of the ring involved,.Mr. Nolte got an itemized statement of the. account of the Gem Jewelry as he wanted to find out 'how much his wife and daughter were charging to him. When he received this statement he asked his wife if she had.bought the ring in question and she told him she had not. He then deducted the price of the ring from the amount of the statement and signed the check of $11,276, otherwise “it wouldn’t have been deducted.” We think there is no question but that the issue of agency of Mrs. Nolte for her husband was raised. Though there is no direct proof that he gave her express authority beforehand,-the conduct of the parties, the testimony and circumstances shown indicate he did so either expressly or impliedly. On this point Speer’s Marital Right in Texas, 3rd Ed., p. 241, states: “And her agency for him may be shown by circumstances; for in the nature of things,, it is but natural that he should authorize her impliedly, if not expressly, to make numei'ous contracts of purchase and otherwise, concerning the domestic affairs of the family.” Also see 41 C.J,S. Husband and Wife §§ 65, 67, 68, pp. 537, 544, 545 ; 26 Am.Jur. 847.

The motion - for rehearing is overruled.