Bridges v. Russell

• Decision Date: 10 April 1888
• Parties: DORA BRIDGES et al., Respondents, v. JOSEPH J. RUSSELL, Executor of MARTHA BOYD, Deceased, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 258

DORA BRIDGES et al., Respondents, v. JOSEPH J. RUSSELL, Executor of MARTHA BOYD, Deceased, Appellant.

Court of Appeals of Missouri, St. Louis.

April 10, 1888

APPEAL from the Mississippi Circuit Court, HON. GEO. H. BENTON Special Judge.

Affirmed.

WILSON & CRAMER, for the appellant: The recital of the receipt of the consideration in the deed from George H. Bridges and wife to Martha Boyd is prima-facie evidence of its payment and precludes a recovery for the first item of the account, there being no evidence to the contrary. 2 Wharton's Evid. [2 Ed.] sec. 1042; Fontaine v Savings Inst., 57 Mo. 552, 561; Hollocher v. Hollocher, 62 Mo. 267, 274. Assuming that an indebtedness existed on account of the second and third items of the claim, the right of Dora Bridges to recover rests upon the agency of her husband. Of this there was no sufficient proof. Eystra v. Capelle, 61 Mo. 578; 2 Bishop's Mar. Wom., sec. 396.

C. P. & J. D. JOHNSON and M. ARNOLD, for the respondents: Appellant after conceding or assuming that there was some evidence of the agency, contends that there was not sufficient to establish the same, for the reason that the rule of law requires stronger and more satisfactory proof of the agency of a husband for a wife than is required in ordinary cases; and cites in support of the same Eystra v. Capelle, 61 Mo 578, and 2 Bish. Mar. Wom., sec. 390. Ordinarily agency will be inferred from circumstances and need not be proved by direct evidence. Hull v. Jones, 69 Mo. 287; Smith v. Warden, 86 Mo. 399. The rule, however, only applies to cases where the act of the husband as the wife's agent is antagonistic to the latter's interest. An examination of Eystra v. Capelle, and Rowell v. Klein, 44 Ind. 291, and McLaren v. Hall, 26 Iowa 297, upon which the decision is based, will show the correctness of this conclusion.

OPINION

THOMPSON J.

Dora Bridges and George H. Bridges, her husband, preferred a claim in the probate court of Mississippi county against the estate of Martha Boyd, deceased, for the sum of $836.16. The probate court refused to allow the claim, and the plaintiffs appealed to the circuit court, where, on a trial anew, before a special judge, sitting as a jury, the plaintiffs obtained a judgment in the sum of $757.02.

The claim preferred by the plaintiffs was stated as follows:

" Estate of Martha Boyd, To Dora Bridges, in her separate and sole right and separate property, and George H. Bridges Dr.

1882.

Feb'y 6, To E. half of lot No. 5, block No. 1, Goodin add. to City of Charleston $150.00

To building house 875.00

To building out-houses, sidewalk, fences, and pump 100.00

By cash on purch. price.$423.60 Balance due 701.40

Int. on same since Feb'y 6, 1882. 136.76

Total $838.16"

At the trial in the circuit court there was substantial evidence tending to support the finding and judgment which the court rendered. This evidence tended to show that, out of property which had been conveyed to Mrs. Bridges, she made a deed of a lot to Mrs. Boyd, who was her grandmother, for the recited consideration of one hundred and fifty dollars, acknowledged in the deed to have been paid, but shown by substantial testimony outside of the deed not to have been paid; that Mrs. Bridges was the owner of a stock of groceries, and that her husband, acting as her agent, carried on the grocery business for her; that her husband, as such agent, made a contract with one Danforth to build a house for Mrs. Boyd upon the lot so conveyed to the latter, for the sum of eight hundred and seventy-five dollars, to be paid to Danforth in groceries; that the arrangement between Mrs. Bridges and Mrs Boyd was that Mrs. Boyd should pay to Mrs. Bridges for the house the sum which Mrs. Bridges paid in groceries to Danforth for building it; and that Mrs. Bridges paid in this manner this sum to Danforth. The evidence, consisting of the entries of a book of accounts found among...