Cyclone Fence Co. v. McAviney

• Decision Date: 30 July 1936
• Citation: 186 A. 635,121 Conn. 656
• Court: Connecticut Supreme Court
• Parties: CYCLONE FENCE CO. v. McAVINEY et al.

186 A. 635

121 Conn. 656

CYCLONE FENCE CO. v. McAVINEY et al.

Supreme Court of Errors of Connecticut.

July 30, 1936

Appeal from Superior Court, New Haven County; Frederick M. Peasley Judge.

Action by the Cyclone Fence Company against Madelyn McAviney and Walter L. McAviney, to recover the balance due under an agreement by the plaintiff entered into with the defendant Walter L. McAviney, for the erection of a fence around property belonging to defendant Madelyn McAviney, which was tried to the court. From a judgment for plaintiff for $2,330.10 damages, and its costs against defendant Walter L McAviney and in favor of defendant Madelyn McAviney, by whom costs were waived, plaintiff appeals.

No error.

Charles Albom and Arthur Klein, both of New Haven, for appellant.

Ellsworth B. Foote, David E. FitzGerald and John Clark FitzGerald, all of New Haven, for appellees.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

BROWN Judge.

The plaintiff sought to recover from the defendant husband and wife a balance of $2,100 due it for the construction of a fence about certain property owned by the wife. The husband, Walter, admitted liability, but the wife, Madelyn, denied it. The plaintiff claimed that the wife was liable upon two grounds, that the husband acted as her agent in contracting for the fence, and that it went for the joint benefit of both under the statute. The trial court gave judgment against the husband, but found that neither ground upon which the plaintiff claimed the wife to be liable was established, and the plaintiff claims it erred in these conclusions.

The following facts material to these issues appear in the finding: The defendants are husband and wife residing together in the house occupied as their home at 85 Blake road, Hamden. In 1930 the husband, who up to that time had owned this property and also a tract of wooded land, vacant except for a barn or shed thereon, located about three blocks from the former property, conveyed both parcels for the consideration of love and affection to his wife, who has ever since been the owner of them. During 1933 and 1934 the husband had an account with a New Haven bank which stood in his wife's name, wherein he deposited his own funds, and from which, pursuant to an arrangement with the bank and his wife, all checks drawn by him were paid. The bank sent monthly statements together with all canceled vouchers to the wife.

May 4, 1933, the plaintiff's sales agent agreed with the husband at his office in New Haven for the construction of a fence around the tract of wooded land for $3,954.85, subject to approval by the plaintiff's home office. A week or two later the plaintiff's representatives told the husband it was ready to do the work as agreed, but, having ascertained that title of the land was in the wife, desired that he have her join in the contract. The husband stated that the original proposal was with him and that he would not involve his wife in the transaction. After communicating with the plaintiff's home office, its representatives told the husband that it would go on with the contract if he would agree to the terms of payment suggested by them, which he did. Thereafter the plaintiff inclosed the property with the fence, which tended to improve its appearance.

July 19, 1933, the husband sent the plaintiff a check for $1,320.92 of Russell McKiernan payable to his order, which he indorsed over to it, on account of the $3,954.85 invoice he had received from it, together with his note for the balance of $2,633.93. Thereafter, up to January, 1934, the husband paid the plaintiff at different times a further total of $480.93 by five checks signed by him drawn on the account above mentioned and paid by the bank therefrom. When each check was given, he gave the plaintiff a renewal note for the balance; the last of these being the $2,100 note sued upon in the second count. In April, 1934, the husband advised the plaintiff that he was unable to make further payments upon this note, and none have been made.

The account for the construction of this fence was charged on the plaintiff's books against the husband only, and the bill of lading therefor was directed to him at his Blake road address. At no time during the entire negotiations relative to the purchase of the fence was the wife present, nor did she take any part in the same whatsoever. Taxes on the list of 1932 assessed against the property upon which the fence was constructed were paid by the husband, but no taxes have been paid on the property since. Sworn returns for the property were made by the husband at the Hamden assessors' office and signed by him as agent for his wife. The husband performed no act in connection with the property other than already stated.

The burden of proving agency was on the plaintiff. The marital relations per se bestowed no authority upon the husband to act as agent for the wife or to enter into a binding contract for her without her consent. 13 R.C.L. 1168, § 194. And, credit having been given to the husband alone, it afforded no ground for a presumption that he was her agent. Shelton v. Pendleton, 18 Conn. 417, 422. It was but one circumstance to be considered bearing upon this issue. Brown v. Woodward, 75 Conn. 254, 259, 53 A. 112. The fact of a special agency did not tend to prove a general agency, nor did the existence of an agency for one purpose tend to establish the existence of one for another and entirely different purpose. Chesebro v. Lockwood. 88 Conn. 219, 223, 91 A. 188; Siller v. Philip, 107 Conn. 612, 621, 141 A. 872. And, notwithstanding the fact that all the consideration of the debt became an accession to the wife's separate estate, this burden of proof as to agency rested upon the plaintiff. Smith v. Marbut-Williams Lumber Co., 37 Ga.App. 239, 139 S.E. 590, 591. While the record discloses no basis for a claim of agency predicated upon either authority by estoppel, express authority, or express ratification, the plaintiff contends that upon the facts found the court either should have inferred that an agency existed at the time the contract was made with it by the husband or concluded that the wife's subsequent conduct constituted an effective ratification thereof.

Even though it were so that, notwithstanding the principles above...