
    Franc v. Nirdlinger.
    If a wife, when asked to permit her husband to apply a specified part of her separate estate in payment of his debt, delivers said property to him, and he, with her knowledge and without objection by her, transfers it to his creditor for said purpose, she thereby makes her express assent that her husband may dispose of said property for his own use and benefit.
    Error to the District Court of Lucas County.
    On June 19th, 1878, Augusta Nirdlinger, a married woman, began a civil action in Lucas Common Pleas against Leopold Franc and others. Her petition charged ■that, in December, 1877, she sold to defendants a bill of exchange, drawn by Hall, Weaver & Co., of La Porte, Indiana, upon the National Park Bank in the city of New York, payable at sight, to the order of Simon Wile, in the sum of fl,079^¡- —Wile having indorsed said bill to her before that time; that she was then the holder and owner of - said bill and indorsed and delivered it to the defendants, who agreed to pay her therefor $1,079¶^, upon request; that she had 'so requested and they had refused to pay. Leopold Franc answered. He denied that she had made anísale to the defendant; and averred “that said draft was indorsed by said plaintiff, and delivered by her to her husband, Jacob Nirdlinger, and by him assigned and transferred to said Leopold. Franc for the purpose and to the end of paying and reimbursing said Leopold Franc for moneys before that time-paid out by him as surety upon debts owing by J. Nirdlinger & Sons, of which the husband and sons, of said plaintiff were the only principals; and to meet debts of J. Nirdlinger & Sons then about maturing, and upon which said answering defendant had become before that surety, and for no other purpose.
    “ That said draft or bill- of exchange was drawn for the very use and purpose for which it was used, and it was agreed by and between said answering defendant and said J. Nirdlinger, that the same should be placed with said Leopold Franc for the purpose of reimbursing him for' payments as aforesaid, and to meet the debts of said J. Nirdlinger & Sens then about maturing, to all of which said plaintiff had notice and knowledge and assented.
    “ Said defendant says that said moneys realized on said draft, together with a large amount of his own funds, amounting to several thousand dollars, has been used by him in paying said debts of said J. Nirdlinger & Sons, and arranging a compromise and composition with the creditors of J. Nirdlinger & Sons to all of which said plaintiff had full notice and knowledge and assented.”
    No reply was filed, but the cause was tried as if the new facts stated in the answer had been duly denied. The verdict was for the plaintiff, $1,265. Franc then moved for judgment on the pleadings notwithstanding the verdict. This was overruled and judgment entered on the verdict. A bill of exceptions was duly made part of the record. The district court affirmed the judgment of the common pleas. The evidence at the trial tended to show that Franc had assisted Nirdlinger, the husband, by advancing money to his creditors, and in other modes, for which the latter owed Franc a large sum; that the husband had promised to procure for Franc money or property of the wife; that about a month prior to the delivery of the bill of exchange, the husband told Franc that she had some money coming from La Porte and he would give that on his debt. The wife never said a word to Franc about it. She indorsed the note “in blank” only. Franc testified that the transaction occurred thus: “Mrs. Nirdlinger didn’t speak a word to me. I spoke to her and said ‘ good morning.’ Mr. Nirdlinger handed me the draft and says, ‘ here is the money from Laporte.’ Of course, having previously had a conversation with him, I knew what the money was. It was money that I had expected to pay his debts with.
    “I took the draft from Mr. Nirdlinger, and all he said was, ‘ Here is the money from Laporte.’ Mrs. Nirdlinger didn’t say a word to me; didn’t say a single word. It is my impression that it was indorsed when I got it.”
    Franc asked the court to instruct the jury thus: “ If the jury find that this draft was the separate property of Mrs. Nirdlinger, and she, with a knowledge of the use and purpose to which the proceeds thereof was to be put, indorsed the draft in blank and delivered it to her husband and he delivered it to Franc in payment of past-due debts, or to meet debts then maturing, such indorsement by her in blank and delivery to her husband, in the absence of other proof, passed to him the title to said draft and the unqualified power of disposing of the same; and such indorsement and delivery by her, in the absence of other proof, amounted, in law, to an express assent or contract on her part that he might use it and dispose of it for his own use and benefit.”
    The court refused; and he excepted. The charge as given contained the following instruction:
    “ There is no law in this state that inhibits a married woman appropriating or subjecting her separate estate towards the liquidation and payment of her husband’s and son’s debts, or the debts of third persons; but, on the contrary, such transactions are upheld and sustained. And in such appropriation, or subjecting, of her said estate to payment of the debts of others no express assent is necessary, but the question is one purely of intention, and her intention to so appropriate or subject may be shown or presumed from her acts, declarations, dealings, and the circumstances surrounding the transaction. And if the jury find from the evidence that Mrs. Nirdlinger so intended when she endorsed and delivered this draft to Franc, then she cannot recover in this action.”
    
      Haynes & Potter, for plaintiff in error.
    
      Charles Kent and Isaac P. Pugsley, for defendant in error.
   Granger, C. J.

The motion for judgment on the pleadings was properly overruled. Lovell v. Woodworth, 39 Ohio St., 614. By treating the new facts in the answer as denied, Franc waived his right, if any he had, to call for judgment in default of a reply.

The question raised upon the action of the trial court touching the charge to the jury calls for an examination of the Act of March 30th, 1871, (68 Ohio L., 48.) (Section 3109 Revised Stats, is substantially the same.) It reads thus: “Any personal property belonging to any woman at her marriage, or which may have come to her during coverture * * shall be and remain her separate property, and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband. This act shall not affect the title of any husband to any personal property reduced to his possession with the express assent of his wife; provided that said personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care, or protection thereof, but the same shall remain her separate property, unless by the terms of said assent, full authority shall have been given by the wife to the husband to sell, encumber or otherwise dispose of the same for his own use and benefit.”

It is not necessary that the assent of the wife shall be established by evidence proving words spoken or written by her. If it be clearly proved that the wife was called to act upon a definite proposal that she should consent to her husband’s reduction to possession of a specific article, or part, of her separate property, for Ms own use and benefit, and that she did act affirmatively upon that proposal, the assent is express within the obvious meaning of this statute. Pollock’s Principles of Contract, 28, and cases cited; 1 Story on Contract, sec. 14, Alexander v. Vane, 1 M. & W., 511. If legal evidence established that Nirdlinger said, in substance, to his wife “ Franc has paid my debts, I owe him more than the amount of your La Porte draft; I have told him I would get that draft for him as a payment on my debt. If you consent to this write your name on the back of the draft and give it me. I will then pay it to him on my debt: ” that she then, without saying a word, got the draft — wrote her name on its back and handed it to him; and he, with her knowledge, handed it to Franc as a payment on said debt, her express assent under this act would have been shown. “ Yes ” may be, substantially said by the wife, although neither her lips nor tongue be used. An affirmative nod of the head in response to a. question, saj^s “yes ” to what is asked as effectually as if the words were spoken. In the case just supposed the getting of the draft, the indorsement, the delivery, and the omission to recall either, although the wife knew that the husband was on his way to use her draft in paying his debt, unmistakably expressed her assent to it all. But under the evidence in the case before us the mere indorsement and delivery of the draft by Mrs. Nirdlinger did not constitute the assent required by the statute. It was a consent that he might collect the money, but not that he might do so “ for his own use and benefit.”

When Franc presented his request for the charge herein-before quoted, there was no evidence in the case on which he could rightfully claim that the jury should find that Mrs. Nirdlinger had any knowledge of her husband’s promise to Franc, or_ that she indorsed and delivered the draft in response to any request for her consent to its application on his debt. If there had been evidence tending to prove that her consent had been asked and that, in response to such asking, she had indorsed and delivered the draft and permitted its transfer to Franc, it would have been the duty of the court to tell the jury that if she had so acted, she thereby fully divested herself of all property in the draft and that the defendant wouíd in such case be entitled to a verdict. But, as the case was, the refusal to charge as requested was right. The instruction actually given, and hereinbefore quoted, was pertinent to the evidence and, as we think, gave to defendants the full benefit of the law' applicable to the case made. As a reviewing court looking only at a record, and seeing no witness, we cannot adjudge that the verdict was not supported by the evidence.

Judgment affirmed.  