Cox v. Hoffman, 20 N.C. 180, 3 Dev. & Bat. 180 (1838)

Dec. 1838 · Supreme Court of North Carolina

20 N.C. 180, 3 Dev. & Bat. 180

JOHN COX v. HENRY HOFFMAN.

A feme covert may become an agent for her husband, and such an appointment as agent may be inferred from his acts and conduct respecting her. When the agency is to be inferred from his conduct, that conduct furnishes the only evidence of its extent as well as of its existence, and in solving all questions on this subject between the principal and third persons, the general rule is that the extent of the agent’s authority is to be measured by the extent of his usual employment.

The husband is responsible for any injury done to the property of another person by the negligence, carelessness, or unskilfulness of his wife in her performance of his business, the wife, in this respect, being considered as his servant.

Trover for a mule, tried at Chowan on the last circuit before his Honor Judge Bailey.

On behalf of the plaintiff, it was proved that the mule was borrowed from the plaintiff’s overseer by the wife of the defendant; that the mule was the property of the plaintiff, and was so injured while in the service of the defendant as to be rendéred of no value, and shortly afterwards died. It was also in proof for the plaintiff that the defendant’s wife had borrowed from a former overseer of the plaintiff, horses belonging to the,plaintiff, and that the defendant had repeatedly expressed his thanks to the overseer for his kindness in making such loans. It also appeared that the defendant’s wife had been in the habit of borrowing from another neighbor with the approbation of her husband ; but that after the borrowing of the plaintiff’s mule when the defendant who was absent from home at the time was informed of the injury done, he told his wife that “ he was sorry, and that she had done wrong.”

Dec. 1838.

His Honor instructed the jury that if they believed the mule went into the possession of the defendant’s wife, and that she acquired that possession by the directions of her husband, and that she had his approbation for that particular borrowing eitheir express or implied ; and that the mule was thereby lost to the plaintiff, the plaintiff" was entitled to recover. The jury returned a verdict for the plaintiff, and the defendant appealed.

Heath, for the defendant.

Iredell, for the plaintiff.

Daniel, Judge.

There can be no exception to the charge of the Judge. A feme covert may become an agent even for her husband. Co. Litt. 52 a. Prestwick v. Marshall. 7 Bingh. 575. 1 Esp. Rep. 142. 2 Esp. Rep. 511. Such appointment as agent, may be inferred from the acts and conduct of the supposed principal respecting her. When the agency is to be inferred from the conduct of the principal, that conduct furnishes (he only evidence of its extent, as well as of its existence; and in solving all questions on this subject, the general rule is, that the extent of the agent’s authority is (as between his principal and third persons) to be measured by the extent of the usual employment of that person. Pickering v. Busk, 15 East 38. Whithead v. Tucket, 15 East 400. Townsend v. Ingles. Holt 278. 3 Esp. 60. 4 Camp. 88. 2. Stark. Rep. 368. Smith’s Mer. Law, 57. Secondly, the defendant was liable for the injury done to the property of the plaintiff by the negligence, carelessness or unskilfulness of his servants in their performance of his business. The wife in the eye of the law is his servant; and the husband would be equally liable to persons for her negligent and careless acts in doing his business, as he would be for the acts of any other of his servants. The judgment must be affirmed.

Per Curiam. Judgment affirmed.