Long v. Martin

• Decision Date: 12 December 1899
• Citation: 54 S.W. 473,152 Mo. 668
• Parties: LONG v. MARTIN.
• Court: Missouri Supreme Court

54 S.W. 473

152 Mo. 668

LONG v. MARTIN.

Supreme Court of Missouri, Division No. 1.

December 12, 1899.

HUSBAND AND WIFE — AGENCY — EVIDENCE — WITNESS — COMPETENCY — INSTRUCTIONS.

1. Conversation between husband and wife in the presence of another is not a confidential communication.

2. A husband may testify to establish his agency for his wife.

3. Objection that witness was incompetent under Rev. St. 1889, § 8922, because the husband of one of the parties in interest, not being made in the trial court, is waived.

4. Witness, though formerly husband of one of the parties in interest, is not incompetent, being divorced at the time of the trial.

5. An instruction authorizing recovery for plaintiff if he had possession of certain live stock sold, and declaring that if A., after he sold the stock to plaintiff, agreed with plaintiff to take possession thereof and hold the same for plaintiff as his property, and did so, the possession of A. was plaintiff's possession, is not erroneous, simply as a definition of "possession," though not comprehensive enough to cover a question under the statute of frauds, if such question had been considered to be in the case, and an instruction covering it had been asked.

6. A wife's appointment of her husband to act as her agent to sell her personal property for her own use is not required to be in writing by Rev. St. 1889, § 6869, providing that "her personal property shall not be deemed to have been reduced to possession by the husband by his use, occupation, care and protection thereof, but shall remain her separate property unless by the terms of said assent, in writing, full authority shall have been given by her to him to * * * dispose of the same for his own use and benefit."

7. Where the question whether the wife authorized her husband to sell personal property of hers to plaintiff depends on which set of witnesses shall be believed, an instruction that "the evidence must be clear and strong, and leave no doubt in the minds of the jury that such authority was given," is properly modified to require a finding according to the preponderance of the evidence.

Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.

Action by William H. Long against John H. Martin. Judgment for plaintiff. Defendant appeals. Affirmed.

W. H. Morrow and Martin & Woolfolk, for appellant. Norton, Avery & Young, for respondent.

VALLIANT, J.

This is an action of replevin to recover a lot of mules and hogs. It was begun in a justice's court, whence it was carried by appeal to the circuit court of Lincoln county, and from there to the St. Louis court of appeals, and transferred to this court upon the certificate of one of the judges of the last-named court that its decision is in conflict with certain decisions of this court named in the certificate. The real controversy is between the plaintiff and Mrs. Allen. The defendant, Martin, is the son of Mrs. Allen, and, at the time the suit was begun, was in possession of the property, holding it for his mother. The plaintiff bought the property from John W. Allen, who at the time was the husband of Mrs. Allen, but they have since been divorced. There was some testimony tending to show that it was Allen's property when he sold it, but there was also testimony tending to show that it belonged to Mrs. Allen, and the case seems to have been given to the jury on the theory that it was her property at the time the plaintiff bought it. The really disputed point of fact on which the case turned was the alleged authorization of the sale by Mrs. Allen. On that point the testimony of the plaintiff in his own behalf was to the effect: That he went to the farm, at Allen's request, to look at the stock, with a view to buying; and after they had talked the matter over, and had about come to an agreement as to price and terms, the plaintiff, who "knew that Mrs. Allen was the moneyed party of the firm," and had heard of a probable separation between them, asked Allen, "Will any disposition you make of this property be satisfactory to your wife?" To which Allen replied: "Certainly. Come into the house and see my wife." That they then went into the house and saw Mrs. Allen, and her husband said to her in plaintiff's presence: "Mr. Long wants to buy the stock, and he wants to know if any sale I may make of the stock, or any disposition I may make of the stock, will be satisfactory to you." To which she replied: "Yes, sir; anything Mr. Allen does will be satisfactory to me. I want to sell all the stock on the place," — adding that she was going to quit the farm. That it was upon that assurance he made the purchase from Allen, and gave him his note for the purchase money. Allen testified, over defendant's objection, as to what his wife said in the interview, corroborating the plaintiff. The testimony for the plaintiff also tended to show that the hogs were taken off the place to be weighed, and for convenience in shipping were taken back to the Allen farm, and the mules were also left there for the same purpose, under an agreement with Allen that plaintiff was to pay him for the corn consumed in keeping the stock until it could be shipped. After that, Martin, the defendant, took the stock and carried it to his own farm for his mother, and had it in possession when the writ of replevin issued. Mrs. Allen's account of the interview was to the effect that her husband came with the plaintiff, Long, to her house, and, opening the door to the room where she was, introduced Mr. Long, and went away. Mr. Long alone came in the room. He began the conversation by reference to his acquaintance with her former husband, and after awhile said that he understood she wanted to sell her property, to which she replied, "Yes;" she wanted to sell, and leave the farm. He said he did not care particularly about buying, but never saw the day he could not handle a few more stock. That was about all that was said relating to business, and he soon arose and left the house. There was nothing said about Mr. Allen selling or disposing of the property, and she never gave him authority to do so. She did not hear of the sale until several days after it occurred.

At the request of the plaintiff, the court instructed the jury as follows: "If the jury believe from the evidence that, at any time before the commencement of this suit, plaintiff had possession of the hogs and mules in dispute, and bought and paid for them, as elsewhere in plaintiff's instruction defined, then the verdict should be for the plaintiff. And a possession such as to entitle him to recover need not be a personal possession, but if, from the evidence, you find that John W. Allen, after he sold the stock to Long, contracted and agreed with Long to take possession of said stock and hold them for Long as Long's property, and did so, then the court declares the law to be that the possession of Allen was the possession of Long." "Though the jury may believe from the evidence that the mules and hogs in dispute belonged to Mrs. Allen, yet if you further believe from the evidence that, at or about the time, and before, defendant purchased the property from John Allen (if you believe from the evidence he did so purchase them), he went to see Mrs. Allen, in company with Allen, with reference to the purchase of said stock, and that Mrs. Allen authorized him to purchase said stock from Allen, and authorized Allen to sell them to him, and afterwards Long purchased said stock and paid Allen for them, either by note or otherwise, then the verdict will be for the plaintiff." To which defendant excepted. The defendant asked the following instruction: "If the jury believe from the evidence that the property in question belonged to Catherine Allen, and not to John Allen, her husband, and that said John Allen made a sale of said property to the plaintiff without authority from the said Catherine Allen, then the verdict will be for the defendant; and the court further instructs the jury that, to show authority from the said Catherine Allen to said John Allen to sell said property, the evidence must be clear and strong, and leave no doubt in the minds of the jury that such authority was given," — which the court refused, to which defendant excepted. The court then changed said instruction to read as follows: "If the jury believe from the evidence that the property in question belonged to Catherine Allen, and not to John Allen, her husband, and that said John Allen made a sale of the property to the plaintiff without authority from the said Catherine Allen, then the verdict will be for the defendant; and the court further instructs the jury that, to show authority from the said Catherine Allen to said John Allen to sell said property, the evidence must preponderate in favor of plaintiff, — that is, the weight of the evidence show such authority on his part," — and gave said instruction as changed and modified, to which the defendant excepted. The court on its own motion gave the following instruction: "The court instructs the jury that if they find from the evidence in the case that the property sued for in this action was on or about the 7th day of June, 1896, the property of one John W. Allen, and was purchased by plaintiff from said Allen on said day, and afterwards delivered to him, or if they find from the evidence the said property belonged to Mrs. Allen, the wife of said John W. Allen, on the 7th June, 1896, and the plaintiff, before purchasing same from John W. Allen, conferred with Mrs. Allen, who represented to him that said John W. Allen had the right and authority to sell the same, and, relying upon the truth of said representations by Mrs. Allen, plaintiff bought said property, and executed and delivered his note therefor to said John W. Allen, then and in either case the verdict should be for the plaintiff; otherwise, for the defendant." To which defendant excepted.

There was a verdict for plaintiff, a motion for new trial by...