Burk v. Howard

Citation13 Mo. 241
PartiesWILLIAM BURK v. JOHN HOWARD.
Decision Date31 March 1850
CourtUnited States State Supreme Court of Missouri
ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

HOLMES, for Plaintiff. 1. The verdict of the jury was flatly against the instructions of the court. 2. That the simple fact that in 1837 the wife was in the habit of doing business for the husband in his absence as his agent, though it may sustain his liability for a loan made at that time, is no evidence whatever of authority to the wife, eight years afterwards, to make a new promise to take a debt, which is barred, out of the statute of Limitations. The authority had long since ceased by the total consummation and ending of the subject matter of it. Story's Agency, §§ 500, 480, 462. 3. A verdict will be set aside where it is manifestly against the weight of evidence, and much more where there is no evidence to warrant such a verdict in law. Hartt v. Leavenworth, 11 Mo. R. 629; 3 Mo. R. 484; Grah. New Tr. 278, 283, when evidence wholly insufficient verdict will be set aside and a new trial granted.

HUDSON, for Defendant. 1. By the evidence set out in the bill of exceptions it appears that plaintiff was a pilot on the river, and most of his time absent from the State, that his wife was his agent and transacted all his business; she purchased the slave, and borrowed the money to pay for her. After the purchase it appears that Burk took possession of the negro girl, kept her in his family as his servant; interpleaded and claimed her when she was taken by the sheriff on execution against Stilwell, thus recognizing the acts of his wife and adopting her contracts, he availed himself of the benefit arising from the purchase, and in justice ought to pay for the slave. It is contended that the conduct of Burk and his claiming of the slave as his property would be sufficient to render him liable, even if the plaintiff below had introduced no witness to prove the fact that Burk's wife acted as his agent. 2. The admissions of Mrs. Burk while acting as the agent of her husband, are obligatory upon him. See 1 Coke, 394; 10 Johns. 46-7; 2 Starkie on Ev. 42-3, 45-6, 56-7; Smith's Mercantile Law, ed. of 1847, 128; Theobold on Prin. & Agent, 286-7. 3. The fact of the plaintiff in error taking possession of the slave and converting her as his property, rendered him liable in this action. 10 Johns. 119-20, 46, 47.

BIRCH, J.

Howard sued Burk, in assumpsit, for money loaned to his wife under the following circumstances: Burk was a steamboat pilot, and while absent upon the river his wife was in the habit of transacting business for him as his agent. In the year 1837, Howard was introduced to Mrs. Burk by one Charles Smith, and at his instance loaned her two hundred dollars, for the purpose of purchasing a negro girl. In June, 1845, Smith went with Howard to Mrs. Burk for the money, twenty dollars of which she paid him, and promised the balance as soon as she could get it. The defendant was not present on either of these occasions, nor was there any testimony that he had ever been seen or spoken to concerning the transaction. It was in testimony, however, that the negro girl which was purchased with the money, thus borrowed, lived in the family of the defendant, and that...

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