Ross v. Baldwin

• Decision Date: 19 November 1888
• Citation: 5 So. 111,65 Miss. 570
• Court: Mississippi Supreme Court
• Parties: MARY J. ROSS v. O. H. BALDWIN, SURVIVOR, ETC

5 So. 111

65 Miss. 570

MARY J. ROSS v. O. H. BALDWIN, SURVIVOR, ETC

Supreme Court of Mississippi

November 19, 1888

APPEAL from the Circuit Court of Madison County, HON. T. J. WHARTON Judge.

F. M. &amp O. H. Baldwin brought this action of assumpsit against Mary J. Ross to recover the balance due on an open account for $ 867.38, contracted during the year 1886. The defendant pleaded the general issue, payment, etc.

At the trial it was agreed between the parties as follows "That the defendant, Mrs. Ross, is, and was the owner of a plantation in Madison County at the time of the contracting of the debt sued for; that she had mules and farming utensils, and that the crop was made on said plantation during the period in which this debt was contracted, and her mules were used in making crops on her premises; that the amount of the account is correct and the articles charged against the parties thereon were obtained by them; that defendant is a married woman and J. W. Ross is her husband and was living with her at the time of the contracting of this debt; that Mrs. Ross received credit on account for all payments, and that the amount of the judgment herein is the balance due on the account; and that all the items of the account sued on were for plantation supplies and for money to run plantation. "

F. M Baldwin having died, the action survived to, and was prosecuted by, O. H. Baldwin.

The testimony for the plaintiff was to the effect that F. M. & O. H. Baldwin knew that J. W. Ross was insolvent and would not have credited him; and that they knew that Mary J. Ross, his wife, owned the plantation upon which he and she resided as well as the animals and farming implements with which the yearly crops were produced on that place, and they (the Baldwins) sold the goods charged in the account sued upon, on her credit exclusively, and not on his at all. The evidence for the plaintiff showed too, that many of the articles of the account were bought by Mrs. Ross, in person, at the plaintiff's store, and taken therefrom by her; and also that an account was made in 1885, in the same way as that of 1886 here in suit, and was paid at the end of that year.

The evidence for the defendant tended to show, that some of the articles charged in the account sued upon were family supplies, and not strictly plantation supplies, and that many of the articles charged in the account were bought for, and used in, cultivation of a farm, (known as the Jones' place) rented and operated by J. W. Ross separately and individually. The defendants also produced evidence tending to show, circumstantially, that the plaintiff's firm knew, when the account was being made, that some of the goods sold were bought for use upon the Jones place, and that it was being cultivated by J. W. Ross on his own account. The plaintiff admitted knowledge that some of the articles charged in the account in question were family supplies, but denied any knowledge that any of the articles of the account were bought for, or used on, the Jones place, and claimed that he thought they were all bought for, and used on, Mrs. Ross' plantation.

The court gave for the plaintiff the following instructions:

"No. 1.--The court instructs the jury that if they believe, from the evidence, that Baldwin knew that Mrs. Ross owned a plantation and team on it, and that Ross, her husband, was making a crop upon it with her team when the debt was contracted, and that the articles charged in the account were sold in good faith to Ross or Mrs. Ross, upon the belief that Mrs. Ross was the party from whom he was to get pay, and that the articles charged against her were suitable for plantation purposes, and such as are usually used to operate a farm in cultivating a crop, then Mrs. Ross is liable for all such articles and money, and it does not change her liability because the articles, or some of them, were used by Ross and his hands on the Jones place, operated by him, and you will so find a verdict for plaintiff, whatsoever amount the evidence shows is due on the account sued for."

"No. 2.--The court instructs the jury that if they believe, from the evidence, that Ross cultivated the plantation of his wife, using her means in such cultivation, and that the supplies obtained from Baldwin by Ross or his wife were suitable for plantation supplies, and that Baldwin dealt with Ross knowing these facts, they will find for the plaintiff the amount still due, as shown by Baldwin's account, even though they should further believe that the goods and money never in fact went on her plantation."

"No. 3.--The court instructs the jury that, under the facts of this case, the law makes Mr. Ross the agent of his wife, with or without her consent, and even against her consent, and she is bound for all goods bought by herself or her husband from Baldwin, if such goods were suitable for plantation supplies, whether they ever, in fact, went on her plantation or not, and the jury will so find."

The court refused instructions asked for the defendant in the following language:

"No 1.--If the jury believe, from the evidence, that the account sued on was contracted, in part, for supplies for Mrs Ross' plantation, and in part for the plantation rented by Mr. Ross, with which Mrs. Ross had nothing to do, and, in part for family supplies, and further believe that some member...