Hawkins v. Windhorst

• Decision Date: 11 April 1908
• Docket Number: 15,471
• Citation: 96 P. 48,77 Kan. 674
• Parties: MILEY HAWKINS v. E. C. WINDHORST
• Court: Kansas Supreme Court

96 P. 48

77 Kan. 674

MILEY HAWKINS v. E. C. WINDHORST

No. 15,471

Supreme Court of Kansas

April 11, 1908

Decided January, 1908.

Error from Edwards district court; CHARLES E. LOBDELL, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

EVIDENCE--Agency--Husband and Wife. Where the issue is whether a husband was the agent of his wife with authority to sign her name to a check upon her bank account, evidence that he frequently signed checks on her account with her knowledge and consent is competent.

A. C Dyer, and F. Dumont Smith, for plaintiff in error.

G. Polk Cline, for defendant in error.

OPINION

PORTER, J.:

The plaintiff sued the defendant to recover the proceeds of a protested bank check for the sum of $ 500, drawn upon her account by her husband, Fred Windhorst. The petition alleged that defendant's husband was her agent, duly authorized to sign her name to checks on the bank, and generally to conduct the business of defendant with the bank as fully as she herself might do. It also alleged that the defendant, by her agent, for a valuable consideration, delivered the check in question for the use of the plaintiff, and that afterward the same was presented and payment refused.

The controlling question raised is upon a ruling of the court in the introduction of evidence. Plaintiff proved by the cashier of the bank that the canceled checks drawn on defendant's account had been returned to her. Defendant herself was then called to the stand, and she was asked the following question:

"Ques. What I want to know is, where are the checks, if any, that your husband signed your name to against your account? Have you got them? [Objected to unless pertaining to this particular check.]

"By the Court: 'I will sustain the objection. This is preliminary, but just as well sustain it here as later on. That question becomes immaterial except to such checks as relate to this transaction.'"

The husband, Fred Windhorst, was then called as a witness by the plaintiff, and he was asked if he ever signed his wife's name to bank checks. The court sustained an objection interposed on the same ground as before. The cashier of the bank, having been recalled, testified that he personally paid checks drawn on the account of defendant; but when asked to state whether or not the husband of defendant signed her name to checks drawn against her account, and whether he did so frequently or otherwise, a similar objection was sustained. Proper exceptions were saved to the rulings of the court.

We think the court erred in refusing to permit plaintiff to prove that the husband had signed his wife's name to checks drawn upon her account, with her knowledge and consent. The issue was whether the husband was the general agent of his wife for that purpose. Agency may always be proved by circumstantial evidence. And the rule is well established that in transactions which relate to trade and commerce it may be proved or inferred from evidence of the habits and course of dealing between the parties. It is said in volume 3 of Elliott on Evidence, section 1635:

"Proof that the principal permitted the supposed agent to perform similar acts and transactions with other persons is competent as tending to establish the existence of an agency."

Mr. Wigmore in his work on Evidence (vol. 1, § 377) says that the use of such evidence for proving the authorization of an agent has always been sanctioned; and that where the question is as to the authority of an agent, and the transaction "has taken the form of a usual and fixed course of business between two persons, this habit is admissible to indicate the probable tenor of a particular transaction." (Vol. 1, § 94.)

Upon an issue as to the implied authority of an agent to exercise powers in excess of those expressly given him it was said, in Wheeler v. McGuire, Scoggins & Co., 86 Ala. 398, 5 So. 190, 2 L. R. A. 808, that "all the circumstances of the transaction, the previous conduct of the defendant, and the usages of the business, may be properly considered" (p. 404), and it was held that any evidence is relevant which shows prior similar acts of the supposed agent and which tends to prove or disprove the knowledge of the alleged principal. In Sanborn v. Cole, 63 Vt. 590, 22 A. 716, 14 L. R. A. 208, it was held that testimony that a wife did all of her husband's business is admissible upon the question of her agency in a particular transaction within that time. The general rule is stated in volume 1 of the American and English Encyclopaedia of Law, at pages 959 and 961, as follows:

"In a great proportion of cases agency arises, not from the use of express language nor from the existence of a well-defined relation, but from the general conduct of the parties. Where one person holds another out as his agent with certain...