Rivers v. Wade Hardware Co., 27169

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: ANDERSON, J.
• Citation: 151 Miss. 163,117 So. 259
• Parties: RIVERS v. WADE HARDWARE CO. [*]
• Decision Date: 21 May 1928
• Docket Number: 27169

117 So. 259

151 Miss. 163

RIVERS
v.
WADE HARDWARE CO. ^[*]

No. 27169

Supreme Court of Mississippi

May 21, 1928

Division B

Suggestion of Error Overruled June 11, 1928.

APPEAL from circuit court of Quitman county, HON. W. A. ALCORN, JR., Judge.

Action by the Wade Hardware Company against Mrs. W. M. Rivers. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

[151 Miss. 164] Boone & Lowrey, for appellant.

We do not believe that this is a proper or safe construction of our statutes, for such construction would prevent any person from conducting business of his own while acting as agent of another. It would be unsafe for any wife who might own or operate property to allow her husband to act as her agent in such operations, as such agency on the part of the husband might establish her liability for his debts and require her to shoulder the burden of proving that any other business operated by her husband in his own name was operated by him solely with his own means. Such proof would be almost impossible to make in cases of this kind where the husband was not alive to testify. The authority upon which the plaintiff largely relied was the case of Banks Co. v. Pullen, 113 Miss. 632, 74 So. 424, and it occurs to us that this authority is by no means applicable to the case of the appellee herein, but that on the other hand it is conclusively in favor of the appellant's defense in the trial court.

We have been unable to find any authority either in this or other states holding that the mere proof of agency on the part of the husband in the operation of his wife's separate estate shifts the burden of proof to the defendant to show that any other business conducted by the husband was not conducted with her means. Surely the safer rule would be to require the plaintiff to establish the fact that the wife's means were used in the conduct of his business, and we believe that our courts will follow this rule. Gross et al. v. Pigg, 73 Miss. 286, 19 So. 235; Cook v. Ligon, 54 Miss. 368.

Lowery & Lamb, for appellee.

This is one of the familiar instances where a business was conducted by the husband with the means and property of his wife without any contract in writing, acknowledged and filed with the clerk of the chancery court as required by law, sec. 2189, Hem. 1927 Code.

The party from whom goods were purchased in this case had no knowledge that the husband was using the property and means of his wife in carrying on the business managed by him but acted upon the presumption that he was operating his own business as he had been doing in years past. This case is very similar to the case of Gross v. Pigg, 73 Miss. 286, 19, So. 235.

If the husband of appellant had not been conducting for her a mercantile business, it might have been incumbent upon appellee to show with more certainty that the goods bought and sued for were used in the operation of the plantation operated for appellant, but where Mr. Rivers had full authority to operate the plantations and the mercantile business and to buy goods necessary for the plantation and to conduct the mercantile business, all that was required of appellee to entitle it to a judgment was to establish the agency, about which there is no dispute, but which was freely admitted by Mrs. Rivers, and the account. Dean v. Boyd, 86 Miss. 204, 38 So. 297; Banks & Co. v. Pullen, 113 Miss. 632, 74 So. 424.

The authority of Mr. Rivers being absolute and unqualified and the account sued on having been established, we respectfully and confidently submit that Mrs. Rivers having received the benefits of the goods, cannot escape liability for the balance owing thereon.

OPINION [117 So. 260]

[151 Miss. 165] ANDERSON, J.

Appellee brought this action in the circuit court of Quitman county against appellant on an open account in the sum of two hundred sixty-four dollars and eighty-six cents for goods, wares, and merchandise alleged to have been sold by appellee to appellant's husband, B. W. Rivers, for her benefit, and for which she refused to pay. At...