McCord v. Blackwell , 31 S.C. 125 ( 1889 )

The opinion of the court was delivered by

Mr. Justice McIver.

The plaintiffs bring this action upon a note bearing date December 10, 1885, payable to the plaintiffs, one day after its date, at any banking house in Augusta, for the sum of one thousand and sixty-four 75-100 dollars, which note is alleged to have been executed by defendant’s intestate, Martha Blackwell. The only real defence interposed was that she, being a married woman at the time, had no power to make the contract in question. The plaintiffs, as was necessary, assumed the burden of showing that the contract was made in reference to the separate estate of Mrs. Blackwell, and for this purpose they offered testimony, tending to show that the note was given in liquidation of an account contracted with the plaintiffs by her, through her husband as her agent, for supplies furnished for her plantation and her tenants thereon.

At the close of the plaintiffs’ testimony, defendant moved for a non-suit upon two grounds: 1st, because there was no testimony that J. P. Blackwell was the agent of his wife; 2nd, that there was no testimony that the contract was made with reference to the separate estate of Mrs. Blackwell. The motion was refused, and the defendant offering no evidence, the case was submitted to the jury under the charge of the Circuit Judge, fully set out in the “Case.” After the jury had retired, the foreman returned to the court room for the purpose of obtaining certain letters that had been offered in evidence, when the judge addressed him as follows: “Mr.'Foreman, the contract must be with reference to her separate estate, or concerning it. I used the wmrd ‘benefit’ in my charge, and I now withdraw it.”

The jury having rendered a verdict for one thousand and sixty-four 65-100 dollars, defendant moved, upon the minutes, for a new' trial upon two grounds: 1st. Because the court erred in giving instructions to the foreman of the jury in the absence of the other jurors. 2nd. Because the consideration of the note embraced articles furnished by plaintiffs that could not relate to the separate estate of the wife.” This motion was likewise refused, and the plaintiffs having entered judgment on the verdict, the defendant appeals upon the several grounds set out in the record, which we will proceed to consider.

The first, second, and third grounds impute error to the Circuit Judge in refusing the motion for a non-suit: 1st. Because plaintiffs “totally failed to establish the fact” of the husband’s agency. 2nd. Because plaintiffs “totally failed to show” that the contract was made with reference to the separate estate of the wife. 3rd. Because the plaintiffs “failed to establish” the fact that Mrs. Blackwell had a separate estate. It may be said of all three of these grounds, that they are based upon a misconception of what will warrant the granting of a non-suit. The question in such case is not whether the evidence “failed to establish” or “failed to show” a fact necessary to the plaintiff’s recovery, but the only question is, whether there is any testimony whatever tending to show the existence of such fact; and if there is any such testimony, the motion for non-suit must be refused, and the question, whether such testimony is sufficient to establish or show such fact, must always be left to the jury. For this reason, it is quite clear that neither of these grounds can be sustained.

But we are not disposed to rest our conclusion simply upon the inaccurate phraseology of these grounds of appeal, and will assume that the purpose was to present the proper question, whether there was any testimony tending to establish either of the three facts referred to therein. After a careful examination of the testimony, which is all set out in the “Case,” we cannot say that there was an entire absence of testimony as to any one of those facts. Without going into anything like a minute discussion of the testimony, it will be sufficient to indicate such as tended to show the facts in question. As to the fact of agency, while it is quite true that there is no direct evidence tending to show that Mrs. Blackwell had, before the account was contracted, authorized her husband to contract in her name, yet the fact of agency may be proved by circumstances, or by subsequent admissions or recognition, as well as by direct evidence- of antecedent authorization ; and, as it seems to us, there were' circumstances which pointed in that direction, and whether they were sufficient to induce the conclusion that there was an agency was a matter exclusively for the jury. There was testimony tending to show that for several years previous the course of dealing between the. parties had been the same, and that Mrs.'Blackwell had recognized the authority of her husband to contract in her name by paying accounts thus contracted, and it was for the jury to say whether this course of dealing authorized the inference that the account for which the note in suit was given was authorized, especially in view of the fact that the note closing such account was signed by her in person. As to the other two facts — that Mrs. Blackwell had a separate estate, and that the account, in part at least, was contracted in reference to that estate — there certainly was some testimony. We do not see any error, therefore, in refusing the motion for a non-suit.

The fourth, seventh, and eighth grounds complain of error in that portion of the charge relating to the laws of Georgia, and their effect upon this contract. Inasmuch as there was no evidence whatever that the contract sued on was entered into in the State of Georgia, except the fact that the note is headed “Augusta, Ga.,” and the money secured thereby is made payable “at any banking house in Augusta,” and inasmuch as there Avas direct evidence that the note was. executed by the defendant in this State, and in view of the fact that the jury were instructed distinctly, that if the note Avas executed here, the Iuav of this State AVould govern, unaffected by any of the provisions of the Georgia law, it seems to us that anything Avhich the Circuit Judge may have said in reference to the law of Georgia Avas wholly immaterial, and need not, therefore, be considered.

The fifth ground of appeal, which imputes error to the Circuit Judge in refusing to instruct the jury, that before the estate of the intestate can be made liable on an account contracted by her husband, the plaintiffs must shoAV that he Avas her agent, duly authorized to make such contract, is taken under a misconception of the charge, for Ave find that the jury Avere so explicitly instructed, in these words : “If she did not communicate or negotiate for supplies in person, did she through her husband, James-P. Blackwell? If the negotiations for these supplies were carried on by James P. BlackAvell, the husband, and it is sought to bind the Avife, it is incumbent upon the plaintiffs to shoAV the agency — that is, that the husband acted as the agent of the wife.”

In the sixth ground, defendant complains that the judge erred in refusing to instruct the jury, that if they find that the articles purchased from plaintiffs Avere not expended by Mrs. BlackAvell on her separate property, of for the benefit of the same, plaintiffs cannot recover. We see no error in refusing this request. The question as to the liability of a married Avoman on a given contract must be determined by the provisions of the constitution and laws limiting her power to contract, and we are unable to discover anything in. either the constitution or any act which would warrant such an instruction. The question in all such cases is as to the nature of the contract, and not as to the disposition of its fruits. If the contract in question is shown to be a contract with reference to the separate estate of a married woman, her liability is at once fixed, without regard to the disposition she may afterwards make of the fruits of such contract.

The tenth and eleventh grounds of appeal claim that the Circuit Judge erred in refusing their motion for a new trial, because, as it is there assumed, the jury disregarded his instructions. There can be no doubt that where a jury renders a verdict in plain disregard of the legal principles laid down to them by the court, it is the duty of the Circuit Judge promptly to grant a new trial. For example, where, as in Dent v. Bryce (16 S. C., 14), the jury are instructed, as matter of law, that the plaintiff cannot recover, and their verdict must, therefore, be'for the defendant, and the jury see fit to disregard such instruction, it is the plain duty of the Circuit Judge, for the very good reasons stated in that case, to grant a new trial, and his refusal to do so is error. Or where, as in the case of Thompson v. Lee (19 S. C., 489), the jury are instructed, as matter of law, that the plaintiff is entitled to recover, and that the counter-claim set up by defendant cannot be allowed in such action, and the jury, ignoring such instruction, render a verdict for the defendant, a new trial must be granted. In both of those cases, it will be seen that there was, and could be, no question that the jury had rendered verdicts in plain violation of their instructions, and wherever this appears, the rule will always be applied. But, of course, it must first appear that the jury have in fact disregarded the instructions given to them, and until this does appear, the rule cannot be applied.

So that our first inquiry is, whether the appellant is warranted in assuming, as he has done, in both of these grounds, that the jury have in fact disregarded or ignored any of the instructions of the Circuit Judge. The instruction which, in the tenth ground, is assumed to have been disregarded, is that if the jury found that any of the articles embraced in the account were for the use or benefit of Sam Yeldell, or any of the other persons there named, or for the use of any other person than Martha Blackwell, the plaintiffs cannot recover for such articles; and as the undisputed testimony showed that some of the articles were furnished to the persons named, it is assumed that the jury, by their_ verdict, disregarded such instruction.

There are, however, two fatal objections to such an assumption : 1st. The instruction did not stop at the point represented in that ground of appeal, but the Circuit Judge, after instructing the jury that the estate of the married woman could not be made liable for articles furnished the persons named, proceeded in these words: “Unless you conclude from the testimony that he furnished those articles; and it must appear from the testimony that these articles had reference to, or for the benefit of, her separate estate under the law of this State.” The'meaning of this, doubtless, was, as we conclude from the testimony and other portions of the charge, that the estate of the married woman could not be made liable for any of the articles furnished for the use of the persons named, unless it appeared from the testimony that the articles were furnished to these persons as tenants of Mrs. Blackwell, or in some way were furnished in reference to, or for the benefit of, her separate estate. 2nd. The Circuit Judge did not, and could not properly, instruct the jury that the estate of Mrs. Blackwell either could, or could not, be made liable for any articles furnished the persons named, as that depended upon the view' they might take of- the testimony. Hence, even assuming that it clearly appears that the jury have by their verdict subjected the estate of the intestate to liability for all or even some of the articles furnished the persons named, it cannot be properly said that the jury have ignored or disregarded any of the instructions given them by the Circuit Judge, unless the court had the power to invade the jury room, or the means of ascertaining the reasons which influenced the jury in making up their verdict; and this the court has always, very properly, declined even attempting to do.

The second objection to the assumption upon which the tenth and eleventh grounds rest is, that, inasmuch as the verdict was for a sum considerably less than the amount due on the note, we are bound to assume that the jury concluded as matter of fact that some of the articles embraced in the account for which the note was given, were not purchased on account of the separate estate of Mrs. Blackwell; and if so, then the verdict was in accordance with, rather than in disregard of, the instructions given to the jury. How many, or what was the amount, of the articles which, under that view, should have been rejected, was a matter depending upon the testimony, and was, therefore, a matter of which the jury, and not the judge, were the proper arbiters.

The twelfth ground of appeal alleges error on the part of the Circuit Judge in refusing the motion for a new trial, because the evidence of the plaintiffs showed that many of the articles embraced in the account for which the note was given “could not be for the benefit of, or concern, the separate estate of the said Martha Blackwell.” This ground depends so entirely upon the view which the Circuit Judge took of the evidence, that it is quite clear this court has no jurisdiction to consider it.

The only remaining inquiry is that presented by the ninth ground of appeal, which alleges error in the remark, above quoted, made by the Circuit Judge to the foreman of the jury when he returned to the court room to procure some papers which had been offered in evidence. Strictly speaking, this was not exactly proper, as it is candidly admitted by his honor in rendering his decision on the motion for a hew trial. There is no doubt that the safer and better practice is that all instructions should be given in open court to the full panel, and not to the foreman or any other member of the jury. If, therefore, the remark made to the foreman had contained any new or additional instruction to the jury, or had even modified or qualified any previously given to the full panel, we should have felt compelled to grant a new trial upon this ground. But an examination of the charge, fully set forth in the “Case,” shows that the remark made to the foreman not only contained no new or additional instruction, but did not, in the slightest degree, modify or qualify any instruction previously given, and hence we think it furnishes no sufficient ground for a now trial.

It appears from the charge, as set out, that though the judge did, in a portion of the charge, use some language which might imply that the contract must be for the benefit of the separate estate, in order to render a married woman liable, yet when his attention was specially called to this matter by the counsel for plaintiffs during the delivery of the charge, he expressly instructed the jury that it was not necessary that the contract should be for the benefit of the separate estate, but that it must concern or have reference to the separate estate. The colloquy which, at that point of the charge, ensued between the Circuit Judge and the counsel for plaintiffs, was well calculated to excite, and no doubt did excite, the special attention of the jury, and they were, therefore, doubtless fully impressed with the idea that it was not necessary for the plaintiffs to show that the contract was for the benefit of the separate estate. Now, when the judge used the language complained of to the foreman, it was manifestly nothing but a mere repetition of the very same instruction, which had been previously given to the full panel, in such a way as was well calculated to impress it upon them. Hence, we think it would be an excess of particularity, a sacrifice of substance to mere form, and an unwarrantable straining of the rule to grant a new trial upon this ground.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.