Gross v. Pigg

• Decision Date: 11 November 1895
• Court: Mississippi Supreme Court
• Parties: ISIDOR GROSS v. LIZZIE PIGG

19 So. 235

73 Miss. 286

ISIDOR GROSS v. LIZZIE PIGG

Supreme Court of Mississippi

November 11, 1895

October 1895

FROM the circuit court of Leake county HON. A. G. MAYERS, Judge.

Action by Isidor Gross, a merchant, on an account for supplies, made by the husband of the defendant, Lizzie Pigg, who owned the plantation on which they resided and as well the work animals used by her husband in cultivating the same. No contract of lease between the husband and the wife was filed or recorded in the office of the clerk of the chancery court; and the testimony as to the manner in which the husband was conducting the business of the plantation is stated substantially in the opinion. Some of the supplies furnished were used and consumed by defendant's family. The instructions quoted in the opinion were given by the court below orally on an agreement of counsel to the effect that the jury might be charged orally as to the law of the case. The verdict and judgment were for the defendant, and plaintiff appealed.

Reversed.

D. C Beauchamp, for appellant.

The testimony shows that there was no contract of any kind between the husband and wife as to the planting business carried on by the husband on her land and with her teams. Certainly the contrary was not shown, and the wife was liable under § 2293, code of 1892. Porter & Macrae v Staten, 64 Miss. 421; Ross v. Baldwin, 65 Ib 570; Lea v. Clarksdale Bank & Trust Co., 72 Ib., 317. There was no evidence to sustain the first instruction.

2. There was nothing in the way of a change from the statutory relation of agent for Gross to have notice of. The "notice" meant by the statute is notice of the contract changing such relation, and not what the appellee erroneously insists it is. Porter & Macrae v. Staten, supra (page 425). Were the same supported by the facts, the wife could not escape liability on the view that the appellant sold to the husband on his own account after knowing that the place was the property of the wife, and that the husband was buying the supplies for her place. That would leave out of consideration his statutory agency arising out of the absence of any contract with his wife while he was using her means or property.

Luckett & Sullivan, for appellees.

1. Gross, who had been dealing with defendant's husband for some years, knew that the plantation was hers, and, knowing this fact, charged the supplies to her husband. According to the testimony of her husband, he also knew that the husband was cultivating the place for himself. This showing justified the instructions given and the verdict rendered thereon. If Gross knew that defendant's husband was cultivating the place on his own account, he was not without the notice contemplated by the statute. Code of 1892, § 2293; Porter & Macrae v. Staten, 64 Miss. 421; Lea v. Clarksdale Bank & Trust Co., 72 Ib., 317.

2. The account included both plantation and family supplies, and there was no effort on the part of plaintiff to separate them. On the case made, the jury could not properly avoid finding for the defendant. Caldwell v....