
    Lawrence E. McLouth, Resp’t, v. Mary E. Myers, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23,1891.)
    
    1. Justice of the peace—Disqualification to act—Pbbsumption.
    It will not be assumed from the fact that a justice of the peace is also a lawyer, that he was acting in the capacity of an attorney when he received an account from one who subsequently brings an action before him thereon, and writes to the debtor that the same has been left with him for collection and that the same will be sued if not paid; the presumption in such case will be that one who has been elected to that office has not been guilty of unprofessional conduct.
    3. Husband and wife—Agency.
    Defendant owned a farm, but was lame, going about on crutches, and her husband assisted her in its management. Plaintiff negotiated with her in relation to a sale of cows, and she referred him to her husband, who, after an inspection, agreed upon a sale for a specified price, and the cows were delivered at the farm. Retd, that the evidence was sufficient to warrant the jury in finding that defendant authorized her husband to purchase the cows for her.
    Appeal from a judgment of the Cattaraugus county court, affirming a judgment for the plaintiff against the defendant in a justice’s court in that county.
    A. & G. E. Spring, for resp’t; C. D. Van Aernam, for app’lt.
   Lewis, J.

The action was brought to recover pay for two cows alleged to have been sold by the plaintiff to the defendant at the agreed price of fifty dollars.

The defense was a general denial and also a breach of warranty.

The case was tried before a jury in the justice’s court. The plaintiff had a verdict for fifty dollars. The defendant appealed upon questions of law to the county court. The judgment below was affirmed and the defendant appeals to this court

On the return of the summons, the defendant presented to the justice her affidavit which stated that a few days before the commencement of the action she received a letter signed by H. R. Curtis, the justice who issued the summons against her, stating that the plaintiff had left with him an account of fifty dollars against defendant for collection, and unless it was settled the plaintiff would feel obliged to bring an action to enforce its collection. That Curtis is a practicing lawyer and also a justice of the peace, and that the account not being paid, Curtis, as such justice of the peace, issued and caused to be served the summons in the action for the collection of the demand. That she presented the affidavit “ for the purpose of raising the question of the ineligibility of said H. R. Curtis to sit in this action to hear or decide the same, by reason of his having acted as attorney and counsel in this matter for the plaintiff before this action was brought.”

The justice proceeded with the case. The plaintiff claims that the j ustice erred in not dismissing the action.

The justice and the parties all resided in the same town. All the affidavit established was that the plaintiff handed the claim to the justice and requested him to notify the defendant that it had been left to be sued if not paid within the time stated.

There is nothing showing that the account was left with Curtis as an attorney for collection or that any statement was made to him of the facts of the case.

We are not at liberty to assume because Curtis was a lawyer as well as a justice that he was acting in the capacity of attorney when he received the account and wrote the letter without further evidence than that furnished in this affidavit.

IE presumptions are to be indulged in, we assume that a gentleman who is counselor of this court and who has been selected by his neighbors to discharge the duties of a justice of the peace has not been guilty of improper and unprofessional conduct. We fail to find any evidence in the case of any bias on the part of the justice. As to the main question litigated, were the cattle sold to the defendant, we find abundant evidence to sustain the verdict of the jury.

The defendant owned the farm; she was lame, going about upon crutches. Her husband, to some extent, assisted her in the management of her affairs. The plaintiff negotiated with the defendant personally about selling the cows to her. She told the plaintiff that her husband would go up and look at them. She accompanied her husband to plaintiff’s place to examine the cows. The defendant’s husband looked at them, defendant remaining in her wagon.

He promised to call again. The plaintiff again saw defendant about the sale of the cows. She referred him to her husband. Her husband agreed to consult his wife, and, in a day or two, he called upon the plaintiff. A sale was agreed upon for the sum of fifty dollars, and plaintiff delivered the cows at defendant’s farm.

A witness testified that a short time thereafter defendant stated that she had purchased the cows of plaintiff for fifty dollars, and she thought she had made a good trade. The defendant controverted the plaintiff’s evidence, but we think there was sufficient evidence to warrant the jury in finding that the defendant authorized her husband to purchase the cows for her.

While the evidence of the plaintiff as to the value of the cows was incompetent, it was harmless, as there was no contention as to what the bargain was; the cows were purchased at a price agreed upon, fifty dollars; and the complaint was upon an agreement to pay a sum stated.

The defendant failed to prove a warranty of the cows.

The verdict of the jury is fully sustained by the evidence, and the judgment appealed from should be affirmed, with costs of the appeal against the appellant.

Dwight, P. J., and Macomber, J., concur.  