McCowan v. Donaldson

• Decision Date: 19 January 1880
• Citation: 128 Mass. 169
• Parties: Rebecca McCowan v. George Donaldson
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 169

Rebecca McCowan v. George Donaldson

Supreme Court of Massachusetts

January 19, 1880

Argued October 28, 1879

Bristol. Replevin of a cow. The answer denied the plaintiff's title. Trial in the Superior Court, before Pitman, J., who reported the case for the consideration of this court, in substance as follows:

The plaintiff, to prove her title, called her husband, who testified that, in March 1876, he bought, for $ 75, a cow and two calves, one of which had become the cow in question, of Ralph King, for the plaintiff, his wife, as her property that he agreed to cancel or release a debt of $ 40 then due from King to him, and his wife was to pay the balance, to amount to the sum of $ 75, which was to be the price of the cow and calves; that she did pay the said balance of $ 35 and received from King at the time the following bill of parcels or memorandum: "Freetown, March 10, 1876. Sold to Rebecca McCowan one cow and two calves for the sum of seventy-five dollars. Received payment. Ralph King."

This was all the evidence offered by the plaintiff to prove her title; and the judge thereupon ruled that, as matter of law the title was not in the plaintiff, and directed a verdict for the defendant. If the ruling was erroneous, the verdict was to be set aside, and a new trial granted; otherwise, judgment on the verdict.

New trial granted.

J. M. Morton, Jr., for the plaintiff.

M. G. B. Swift, (H. K. Braley with him,) for the defendant.

Gray C. J. Colt & Ames, JJ., absent.

OPINION

Gray C. J.

In this Commonwealth, a married woman, though she cannot acquire property by contract or gift directly from her husband, may acquire it either by purchase or by gift from a third person, and may assert her rights therein by a suit in her own name against any person but her husband. Gen. Sts. c. 108, §§ 1, 3. St. 1874, c. 184, §§ 1, 3. Degnan v. Farr, 126 Mass. 297. She may make such purchase, either by her own act, or through her husband or any other person as her agent. If the purchase is made in her behalf, and the property is transferred by the seller to her, the fact that the husband himself pays part of the price to the seller does not make the sale from the latter to the wife a gift from the husband to her of the property sold. Adams v. Brackett, 5 Met. 280. Fisk v. Cushman, 6 Cush. 20.

In the case at bar, the husband testified that he bought the cattle for his wife as her property at a certain price, part of which he agreed to pay by releasing a debt due him from the seller, and the rest of which the wife was to pay and did pay, receiving at the same time from the seller a memorandum or bill of parcels stating a sale from the seller to her for the price agreed. It was admitted at the argument that, upon this report, the property is to be assumed to have been delivered to the wife. That the husband, in saying that he bought the cattle "for his wife as her property," meant that he acted as her...