The opinion
White, J. (dissenting.)
This is an appeal by the plaintiff from a judgment of the municipal court of Buffalo, of no cause of action, rendered on March 8, 1892, in favor of the defendant, and against the plaintiff. The plaintiff claims that in May, 1890, the plaintiff’s husband and one Hughson, as co-partners, sold and delivered to the defendant a quantity of furniture, including two mantel tops, at the agreed price of $239, payable upon the delivery of the goods, and that the goods were worth the sum agreed upon. The complaint admits that $199 thereof was paid, and seeks to recover the alleged balance of $40, with interest from May 9, 1890. The complaint also alleges that the claim sought to be enforced was assigned by the plaintiff’s husband and his. partner to one John Streicher, and that Streicher reassigned it to the plaintiff, before suit was brought. The answer denies the value of the property purchased by the defendant from the plaintiff’s husband and his partner, and their alleged assignments of the claim, and alleges payment in full for all he purchased. The substantial issue in the case is whether or not the two mantel tops were purchased by the defendant, or whether he became liable to the firm of Bensler & Hughson for their value. If this issue is to be decided in favor of the plaintiff, the judgment appealed from must be reversed. The transaction between the defendant and the firm of Bensler & Hughson was, in the first instance, conducted by Hughson, on the part of the firm, with the defendant, personally. Hughson testifies that he made the sale, and that the mantel, tops were charged by him to the defendant at $40, and that the defendant’s wife assisted him in selecting the articles, and that the mantel tops were to be made from a plate exhibited by him to them at the time of the selection. He says he delivered the articles, including the mantel tops, at the defendant’s house, to his wife, who expressed her disapproval of them. In fact, they were not according to contract. But she consented that they be put in place, on the suggestion of Hughson that she might then be satisfied with them, and she told him die would not payfor them until they were made right. Afterwards,' Hughson went to the defendant, at his office, with the bill for the goods, including the mantel tops; and the defendant told him to take the mantel tops away, but made an offer for them, which Hughson declined. Another bill was made out, omitting the mantels, and defendant then gave his note for the balance of the goods, $199, which was duly paid. The plaintiff’s husband says, after the assignment to Streicher, he asked defendant to pay for the mantels; that defendant offered ten dollars for them, which was refused, and that defendant told him to take them away from the house; that he went for them, and informed Mrs. Locke of the arrangement made with her husband to take them away,' but she refused to let him take them. This was reported to defendant, who again told Bensler to take them away. On again applying to Mrs. Locke, at the house, for them, she again refused to allow him to take them. He says, further, that defendant never refused, by word of mouth, to give up the mantel tops, but told him each time to go and get them, and *265 his wife refused to deliver them up. Charles Bensler corroborates the statements of his father as to the refusal of Mrs. Locke to allow the mantel tops to he taken out of the house. The defendant’s wife virtually admits that Bensler came and demanded the mantel tops, and that she refused to allow him to take them. The inference that she did refuse is irresistible. Defendant removed the mantel tops from the house in which Hughson placed them to another house, afterwards purchased by him, and put them up himself, and has since used them in the last-mentioned manner. The plaintiff contends that these mantel tops were ordered by the defendant, and in this we think she is clearly in error. It is undisputed that the mantel tops delivered and put up by Hughson were not the ones contracted for at the sum of forty dollars. Hughson himself so testifies. It is further undisputed that the defendant never agreed, in terms, to pay forty dollars for the-mantel tops delivered. Ho one, in fact, claims that he did. But he knew from the start that these mantel tops were furnished instead and in place of those ordered, and that the price charged for them was the same, and that if he accepted them he was expected to pay that price. The record shows that Mrs. Locke took part in selecting the goods purchased by her husband. On the trial below the defendant was permitted, over the objection of the plaintiff, to prove the statements of Mrs. Locke to Hughson concerning the defects in the mantel tops, or the respects in which they varied from those ordered, and the arrangement with her under which they were put up in the first place. Ho exception was taken to the admission of this evidence, but its admission at the instance of the defendant shows that he relied and tried In's case upon the theory that his wife acted as his agent in their dealings with Bensler & Hughson, and, having had the benefit of that theory on the trial, he should not be permitted to repudiate it now. The only theory upon which the wife’s evidence was admissible to show a rejection of the mantel tops was that of agency for her husband. If she were not his agent, her testimony would have been incompetent in reference to that transaction. Independently, however, of the position taken by the defendant, in this respect, upon the trial, the conduct of the defendant and his wife, for which he should be held responsible, fixes his liability for these mantel tops at the price charged. While it is true that the marital relation alone raises no presumption of authority on the part of the wife, yet slight evidence of actual authority in domestic matters is enough. The faót that she joined her husband in the selection of the goods, and in fact was the only person in a situation to receive them when delivered, and that they were found by him to have been put up in shape for use, and thereafter actually appropriated by him, together with her refusal, on two occasions, to allow them to be taken away, when informed that her husband had said they might be, and the failure of the husband to take any steps towards their return after these demands upon his wife, all tend, in my mind, to the conclusion that the defendant deliberately determined to keep and use the mantel tops as his own, *266 notwithstanding their variance from those contracted for. The defendant should either have made it possible for Bensler to get the mantel tops, at any rate on his second demand, or be held to have accepted, and compelled to pay for them. When the defendant left his house in charge of his wife, he thereby constituted her his agent to receive the mantel tops; and, by'the same principle, she, as his agent, was bound to deliver them up on demand of Hughson. No sufficient reason is given for her refusal to do that, and therefore it constituted a legal acceptance of them by the defendant. While the amount involved in this litigation is comparatively small, the principle to be vindicated, as Ilook at the case, lies at the foundation of honesty and fair dealing among men.
I think the judgment appealed from should be reversed.
Judgment affirmed, with costs.