Taylor v. Shelton

Ellsworth, J.

Upon the trial of this case the plaintiff, having introduced the note declared upon in evidence, claimed that the note upon its face appeared to be the note of the defendant, and was therefore correctly described as such in the declaration; but, if this was not so, that it was shown to be *127 his by the facts agreed upon by the parties—to wit, that Mrs. Shelton was a married woman, having an abundant estate of her own, and actually made the purchase in question by her authorized trustee, on her credit and for her benefit.

Now it is not easy to see how the claim in either aspect can be maintained, upon the admitted principles of the law. Certainly the note on its face is directly opposed to such a claim. The defendant does not promise by the note, nor was it understood or expected that he would. Besides, the authority of the defendant to act for Mrs. Shelton being admitted, and if not admitted it would be only a question of fact, there is no possible room for the claim that Mrs. Shelton did not intend to bind her separate estate in the hands of her trustee. It is however further found that Mrs. Shelton had ample separate estate, and was able to make the purchase for herself, and that the defendant in fact acted for her as well as under proper authority in making the purchase. These facts only more clearly show the absurdity of the claim that the defendant is the promisor in the note.

But it is said that Mrs. Shelton was a feme covert, and could not bind herself by a personal contract. Nevertheless she could bind her property in the hands of her trustee, as this court has repeatedly decided, and such is the law of this country generally, as well as of England. Imlay v. Huntington, 20 Conn., 146 . Leavitt v. Beirne, 21 Conn., 1 . Jones v. JEtna Ins. Co., 14 Conn., 501 . Yale v. Dederer, 22 N. York, 450. But were this otherwise, and she could not conclusively bind her estate, or herself personally, this circumstance would by no means make this note the note of the defendant. For aught we know, and we may well presume the fact was so, the plaintiff preferred to make sale of his coal upon her promise, and her credit, and upon just such a note as he received. Her trustee never undertook to give his own note, and there is nothing before us to show that, if he had expressed such a wish, the plaintiff would have yielded to it, or parted with the property upon his credit. We must allow the parties freedom to make their own bargains, and require them *128 to seek for payment from those only to whom credit was in fact given.

The idea of the plaintiff’s counsel seemed to be, that a feme covert 'could (not make a contract of any validity whatever; and that consequently, if any person proposed to act for her, however openly and honestly, as a contracting party, he only bound himself, and the other party might look to the agent as the principal and require him to fulfill the agreement. This is not a correct view of the law.

Besides, it does not follow that if the plaintiff is unable to get his money from Mrs. Shelton, he can come upon the defendant in the form he has attempted, nor perhaps in any form upon the facts shown on this record. We can imagine a state of facts where the agent might be sued for damages as for fraud or misrepresentation in acting for another and representing him as his principal .when he had no such right or authority, and we think he may in such a case be sued as principal if he has made use of apt words to that effect in the contract. This question, as to the form of relief in such a case, was much discussed by the court in the case of Ogden v. Raymond, 22 Conn., 384 . See also Hewitt v. Wheeler, 22 Conn., 562 ; Story on Agency, §§ 151, 155, 261, 287; and Story on Prom. Notes, § 65.

A claim has been made on the common counts. We see no ground for this claim ; indeed it has not been seriously pressed. The coal was not sold to the defendant, nor on his credit, and without this there is nothing for the. common counts to rest upon.

We do not advise a new trial.

In this opinion the other judges concurred.