Roper v. Cannel City Oil Co.

• Decision Date: 11 December 1918
• Docket Number: No. 9641.,9641.
• Citation: 68 Ind.App. 637,121 N.E. 96
• Parties: ROPER v. CANNEL CITY OIL CO.
• Court: Indiana Appellate Court

68 Ind.App. 637

121 N.E. 96

ROPER

v.CANNEL CITY OIL CO.

No. 9641.

Appellate Court of Indiana, Division No. 1.

Dec. 11, 1918.

Appeal from Superior Court, St. Joseph County; George Ford, Judge.

Action by the Cannel City Oil Company against Ella M. Roper. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.Ralph S. Feig and John W. Schindler, both of Mishawaka, and Stuart MacKibbin, of South Bend, for appellant.

Van Fleet, Hubbell & Dinnen, of South Bend, for appellee.

BATMAN, J.

This is an action by appellee against appellant on a promissory note. The complaint was answered by a general denial and a plea of non est factum. The cause was tried by a jury, which returned a verdict in favor of appellee, and on which judgment was rendered against appellant for $625 and costs. A motion for a new trial was filed and overruled. This action of the court constitutes the sole error on which appellant relies for a reversal.

Appellee contends that this appeal cannot be considered on its merits, because the transcript is not properly authenticated. This question was determined adverse to appellee in ruling on its motion to dismiss the appeal, and requires no further consideration. It is also contended that appellant's brief is defective in certain particulars, but, in view of the conclusion we have reached with reference to the merits of the case, it will not be necessary to pass upon such questions.

Appellant contends that the verdict is not sustained by sufficient evidence. She bases this contention on a claim that the uncontradicted evidence shows that she did not execute the note in person, but that her name was signed thereto by her husband; that there is no evidence that her said husband had authority to execute the note as her agent, and that the uncontradicted evidence shows that he had no such authority. In considering this contention it may be well to note certain pertinent rules, which may be accepted as settled.

[1] A husband may act as agent for his wife and bind her by note. Wasem v. Raben (1909) 45 Ind. App. 221, 90 N. E. 636.

[2] The mere fact of the marital relation, however, does not establish such agency. 21 Cyc. 1663; 13 R. C. L. 1168. But such fact may be considered as a circumstance in determining the question of agency. 21 Cyc. 1240; Barnett v. Gluting (1891) 3 Ind. App. 415, 29 N. E. 154, 927.

[3] The relation of agency between husband and wife is governed by the same principles which apply to other agencies. 15 A. & E. Ency. of Law, 855 and 856; Runyon v. Snell (1888) 116 Ind. 164, 18 N. E. 522, 9 Am. St. Rep. 839; Wasem v. Raben, supra.

[4] But, to establish such relation between husband and wife, the evidence must be clear and satisfactory, and sufficiently strong to explain and remove the equivocal character in which the wife is placed by reason of the marital relation. Rowell v. Klein (1873) 44 Ind. 290, 15 Am. Rep. 235.

[5] The relation of principal and agent may be shown by circumstantial evidence alone. The Indiana, etc., Co. v. Adamson (1888) 114 Ind. 282, 15 N. E. 5;Broadstreet v. McKamey (1907) 41 Ind. App. 272, 83 N. E. 773;Ellison v. Flint (1908) 43 Ind. App. 276, 87 N. E. 38;Stockwell v. Whitehead (1910) 47 Ind. App. 423, 94 N. E. 736. This rule has been applied where the relation of principal and agent between husband and wife was involved. Lindquist v. Dickson, 98 Minn. 369, 107 N. W. 958, 6 L. R. A. (N. S.) 729, 8 Ann. Cas. 1024; Barnett v. Gluting, supra.

[6] It is also well settled that, in determining the sufficiency of the evidence, this court is limited to a consideration of that most favorable to appellee, including such inferences in its favor as the jury might have reasonably drawn therefrom. Southern Product Co. v. Franklin, etc., Co. (1914) 183 Ind. 123, 106 N. E. 872.

[7] In this case the evidence favorable to appellee tends to show that the note in suit was given in part payment of stock in the Cannel City Oil Company, the appellee herein; that the purchase of the stock was made by James A. Roper, the husband of appellant, who executed the note in suit by signing her name thereto and making delivery thereof; that appellant and said James A. Roper had lived together as husband and wife for about 45 years; that appellant during said time had acquired a considerable property, some of which had come to her as gifts from her said husband; that her said husband had been actively engaged in business during said time, and had been intrusted with the management of much of her business both prior and subsequent to the execution of the note in suit; that appellant was the owner of a large amount of real estate, but she could not tell where all of it was located, and had but little idea of the value of any of it. She first testified that the only personal property she owned was some household furniture and trinkets. She afterwards recalled that she owned stock in the Roper Furniture Company and at least three banks and trust companies, but she could not tell the amount of stock which she owned in any of them, or give an estimate of its value. When testifying she said she was not able to remember that she owned any other personal property, but her husband testified that she was the owner of a large amount of other personal property, with which he appeared to be familiar, consisting of stocks, bonds, and notes in and against various companies, aggregating in value many thousands of dollars. After her husband had so testified she made no denial of such ownership, or explanation of the fact, that while she claimed to transact her own business without material aid from her husband, she was not able to remember that she was the owner of such property. Neither did she give any evidence to indicate that she knew when, where, of whom or at what cost any of it was acquired. There was also evidence tending to show that appellant received her first information, as to the pendency of this action, in May or June, 1915, through certain papers received by mail at Little Rock, Ark., where she was then staying; that she did not return from Little Rock until the following July, and in the meantime did not communicate with her husband regarding the note, and did not inquire with reference to his signing the same until recently; that she did not employ attorneys to make a defense for her, but left that to her husband; that she did not see her attorneys or communicate with them with reference to the matter until the week preceding the trial in October, although the suit had been pending since the preceding June. When appellant was asked if she did not know that it was a fact that her husband did not have any property at all, that it was all in her name, and that he had to do business in her name with everybody, she answered that she did not know. Some of the answers of appellant to questions propounded by counsel for appellee manifested an attempt to evade certain material...