
    
      John Colgan vs. Wesley Philips, Adm’r. of Joseph Rearden.
    
    In an action on an open account for goods sold and delivered to the infant son of defendant’s intestate, who was living with his father when the debt was contracted, plaintiff, after proving that the wife of intestate had been his general agent, offered in evidence, as proof of an admission of the demand by the intestate, a sealed note given to the plaintiff by the wife, in her own name, for the amount of the account: — Held, that the note was admissible as evidence for the purpose for which it was offered.
    
      Before Munro, J., at Edgefield, Spring Term, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of debt. There were two counts in the declaration. The first was on a sealed note for $107 42, payable to plaintiff at one day, and bearing date April 15, 1853. The note was executed in the name of Nancy Rearden, the intestate’s wife, during her husband’s life time, and was given by her to the plaintiff in liquidation of an open account, consisting chiefly of articles of clothing furnished to the intestate’s son, a youth of about sixteen years of age. The second count in the declaration was for goods sold.
    “In order to establish the liability of the defendant’s intestate for the demand in question, the plaintiff undertook to show, that the former had, in his life time, constituted his wife his general agent, if not for the transaction of the whole, at least for a considerable portion of his business ; and that while acting in that capacity, which she did through a series of years, she had frequently executed notes in her own name — although none were proved to be under seal — and that her agency in all such transactions, as also the mode and manner of their execution, had invariably received the sanction and confirmation of her husband. On this point, the proof was, I think, very conclusive. The only proof, however, of the wife’s agency in this particular transaction, was the execution of the note in her own name, and for this purpose it was offered in evidence by the plaintiff’s counsel — I having expressed an opinion that no recovery could be had upon the note itself. Its introduction for that purpose was objected to by the defendant. I sustained the objection, and the plaintiff having no other proof to offer, a motion for a non-suit was made in behalf of the defendant, which I granted upon the ground, that however clear the proof of the wife’s agency may have been, it had not, in the contract in question, been exercised in a manner that could render her principal legally responsible.”
    The plaintiff appealed, and now moved this Court to set aside the non-suit, on the following grounds :
    1. Because proof of agency from the husband to the wife was, under the circumstances, a question oí fact for the jury, and should have been submitted to them.
    2. Because his Honor, it is respectfully submitted, erred in holding, that the note, given by the wife, was inadmissible as evidence to show an affirmation by her of the contract of purchase by the son.
    
      Mor ague, for appellant,
    cited Prestwick vs. Marshall, 7 Bing. 656; Cotes vs. Davis, Camp. 485; Barlow vs. Bishop, 1 East, 432; McKinley vs. McGregor, 3 Whar. 369.
    
      Owens, for Abney, contra.
   The opinion of the Court was delivered by

O’Neall, J.

That the single bill, as the deed of a feme covert, is void, is not disputed. Not being executed in the name of the husband, or for him, from anything which appears on its face, prevents it from being set up as made by his agent, and therefore his deed. For, as is said in Robertson vs. Pope, 1 Rich. 504, “it must appear from the deed, that the sealing and delivery was in the name of the principal.”

But in this case, there was a count for goods sold and delivered to the son of the deceased, a minor, living with his parents.

The fact that the deceased had constituted his wife his general agent, was, as the Judge says, conclusively shown.

The single bill, although void as such, may very well be regarded as a written memorandum, by the wife as the agent of the husband, acknowledging* the justice of the account for the goods sold to the son, which were its consideration, and thus may charge her principal. For that the wife may be the agent of the husband to any extent which he may please, is too clear to admit of doubt. Story on Agency, § 7. Persons dealing with her, had the right to consider themselves as dealing with the principal. Story on Agency, § 165. Looked at in this way, this case stands before the Court thus: The son of the deceased, a minor, takes up goods from the plaintiff: when the account is presented the deceased, by his agent, gives a void instrument to liquidate and discharge the demand. This is, beyond all doubt, an admission of the liability of the deceased to pay, and hence there can be no doubt, that unless the effect of this statement of facts should be altered, by showing either that the authority of the wife was less than is conceded in the report, or that, in fact, there was mistake or fraud in making the single bill to discharge the account, the plaintiff will be entitled to recover.

The motion to set aside the non-suit is granted.

Wardlaw, WitheRs, Whitner, Glover andMuNRo, JJ., concurred.

Motion granted.  