Long v. Martin

¶1This case originated before a justice of the peace by a replevin of certain hogs and mules. Plaintiff had judgment, from which defendant appealed to the circuit court, where plaintiff again had judgment, from which this appeal was taken.

¶2According to plaintiff’s evidence he bought the property in dispute from one John Allen, and while negotiating the trade he said to Allen, “will any disposition you make of the property be satisfactory to your wife?” That Allen said: “Certainly. Come into the house and see my wife.” That thereupon the parties went into the house, and Allen said to his wife: “Mr. Long wants to buy the stock, and he wants to know if *571any sale of the stock I make will be satisfactory to you.” That the wife replied: “Yes, sir. Anything Mr. Allen does will be satisfactory to me.” Plaintiff states that the trade was thereafter consummated. Defendant was the son of Mrs. Allen. It appeared from his evidence that the property was left on the farm after the transaction between Allen and plaintiff, and that his mother subsequently sent it to him for safe keeping; that plaintiff gave a note for the purchase money to Mr. Allen, on which a small portion of the purchase money had been paid up to the time of the trial. Mrs. Allen testified that she had no conversation as that detailed in plaintiff’s evidence; that she never authorized her husband to dispose of the property ; that it was hers, bought and paid by her during coverture with her own money. Defendant also gave evidence that the money used by the wife in paying for the property was derived from the rents of certain real estate situated in Louisiana, Missouri, which she owned.

¶3Husband and wife: confidention“?eTiimony of husband: competency. The first error assigned relates to the admission of the testimony of Mr. Allen as to the conversation with his wife in the presence of the plaintiff. It is insisted that this was a confidential communication, wherefore the husband ___ 4-n , 4+ There was incompetent to testify as to it. is no force in this objection, since it appears, from plaintiff’s testimony, that he was present at the time of the alleged conversation between the husband and the wife. It could not therefore have been a confidential communication.

¶4ti°n„. *572“Ss.*571The next complaint relates to the giving and refusal of instructions. It is objected to plaintiff’s first instruction that it ignores “the ownership of the stock” and the husband’s authority to sell it. This objection is not *572well taken. The instruction expressly conditions plaintiff’s right to recover upon the fact that he “bought and paid for them (the property) as elsewhere in plaintiff’s instruction defined.” The other instruction for plaintiff does present fully the issue, not set out, but thus referred to in the first. Nor was the instruction. under review erroneous in stating that the purchaser of the stock might by contract with the seller place the property in the custody of the latter as agent of the buyer. Nor was the transaction within the statute of frauds, since the evidence is that there was a delivery and acceptance óf part of the property and that a note was given after the sale for the price.

¶5Complaint is made of the giving of the two following instructions:

¶6“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) that 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.”

¶7“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 *573Catherine 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.”

¶8Status of Carried woman. The first of these instructions was warranted by the terms of section 6864 of the Eevised Statutes of 1889. Since that enactment the status of a married woman, except as to her right gue ber husband in an action at law and

¶9her right to convey her real estate, held as at common law, has been that of a femme sole or a person sui juris. This act was intended to be definitive of the rights and powers of a married woman, and necessarily repeals all prior repugnant legislation. Brown v. Dressler, 125 Mo. 589; Huss v. Culver, 70 Mo. App. 514; Hiltebrand v. Robitsch, 62 Mo. App. 439; McCorkle v. Goldsmith, 60 Mo. App. 475. The case of McFarland v. Heim, 127 Mo. 327, relied on to support a contrary doctrine is not in point. The cause of action in that case arose upon a contract of date August 1, 1888, made before the passage of the above statute, and the conclusions therein expressed were drawn from, the law as it existed prior to said act.

¶10Ahu?b0andTtYoactas proofJsuffi-6* ciencyThe objection to the second of the above instructions is that the court told the jury that it was sufficient for plaintiff to establish the husband’s agency for his wife by a preponderance of the testimony. That this has been the uniform rule in civil actions at law, is well settled in this state. Marble et al. v. Fire Ins. Co., 43 Mo. 586; Edwards v. Knapp, 97 Mo. 432. Following the remark of the court in Eystra v. Capelle, 61 Mo. 580, a different rule has been announced in mechanics’ lien eases, where it was shown that the husband had contracted in writing and in his own name for the improvements. Mill Co. v. Brundage, 25 Mo. App. 268; *57444 Mo. App. 386. It must be borne in mind that the authority of the wife to appoint her husband as her agent to contract for improvements upon her real estate, held as at common law, was conferred only by the terms of the mechanics’ lien law. Tucker v. Gest, 46 Mo. 339. As the authority thus given was in derogation of her ordinary incapacity to act, the courts felt warranted in requiring proof “cogent and strong and more satisfactory than would be required between persons occupying different relations.” 61 Mo. supra, 580. The reason for this holding wholly fails, since the adoption of the Married Woman’s Act in the revision of 1889, made the legal relations of the wife practically the same as those of a femme sole. The wife being possessed of full power to contract as to every species of her estate, it is not perceivable why a different measure of proof should be required to establish her contracts than would be required to prove those of other persons. In our opinion this conclusion is the necessary result of the freedom of action accorded to her under the law as it now stands. Hence there was no error in the instruction under review. The judgment will therefore be affirmed.

¶11Judge Biggs concurs, Judge Bland dissents, and being of opinion that this decision is opposed to the decisions of the supreme court in 61 Mo. 560; 130 Mo. 155; and Kansas City court of appeals in 65 Mo. App. 117, the cause will be certified to the supreme court for final determination.