Slater v. McGuire — 42 N.Y. St. Rep. 20

Majority

p. 20

William G. Slater et al., App’lts, v. Hannah McGuire, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Dismissal oe complaint—Contract—Married women.

In an action against a married woman for erecting a building on her land, there was proof that her husband made the contract; that the plans were altered to suit her and that she personally directed the work. She testified that her husband contracted without her authority and against her will. Held, that a dismissal of the complaint was error, as the jury might disregard defendant’s testimony.

Appeal from a judgment of nonsuit ordered by Justice Barnard, and an order denying a motion for a new trial upon the minutes.

p. 21

The action was brought to recover a balance of $1,473, with interest from April 1, 1888, due the plaintiffs under a written contract, set out in the complaint, between William McGuire (the husband of the defendant), owner, and these plaintiffs. In fact William McGuire, who was insolvent, was not the owner of the land, as he represented himself to be in the contract, but the defendant Hannah McGuire was the owner, as admitted in defendant’s answer. The complaint alleges that William McGuire was at the time of making such contract the husband and agent of the defendant, and as such contracted with the plaintiffs.

At the close of the testimony the Court ordered a nonsuit, for the reason that it was not shown that William McGuire was acting for his wife, the defendant, nor with her assent or authority, ■or upon her credit or responsibility. The plaintiffs asked to go to the jury upon the whole case.

Motion denied and plaintiffs except.

Daniel Haight, for app’lts; Norman A. Lawlor, for resp’t.

The motion for nonsuit at close of plaintiff’s case was properly denied.

The plaintiff had proved that the plans of the house were prepared to suit the defendant, numerous alterations being made for that purpose ; and that she personally directed the erection of the house, her presence being almost constant.

The testimony was ample to justify the jury in finding that the husband acted for the wife with full authority, in contracting, and the proof would abundantly sustain a finding that the act of the husband in making the contract was ratified by the wife; if any doubt existed as to the original authority.

Thereafter the defendant testified in her own behalf to the effect that her husband contracted without her authority and against her will.

The circuit judge then dismissed the complaint upon the ground, apparently, that her testimony not being contradicted must be taken as true.

This we think was error. The defendant being a party in interest, the jury might disregard her testimony if it was judged unworthy of belief. It was not reconcilable with that of other witnesses, of whom one at least was not interested in the action.

The jury might hesitate to believe that defendant’s disapproval of the building could have been successfully concealed during the considerable time required for the erection.

A new trial should be ordered; costs to abide event.

Dykman, J., concurs; Babnabd, P. J., not sitting.