
    [No. 3029.
    Decided December 6, 1898.]
    Jane Bunker, Respondent, v. Barney H. Hattrup et al., Appellants.
    
    WIFE’S SEPARATE PROPERTY—LIABILITY FOR HUSBAND’S DEBTS.
    Where there is no proof of when the marriage relation between husband and wife was assumed, and nothing to show that a promissory note in her favor was community property, the maker of the note is not entitled to offset a bar bill due him from the husband against the amount due on the note to the wife.
    Appeal from Superior Court, Whitman County.—lion. William McDonald, Judge.
    Affirmed.
    
      V. B. Bull, and Wyman & Neill, for appellants.
    
      J. W. Mathews, and Hanna & Hanna, for respondent.
   The opinion of the court was delivered by

Gordon, J.

This action was brought to recover an alleged balance due on a promissory note executed and delivered by the defendants (who are husband and wife) to the plaintiff. The answer admitted the execution and delivery, and alleged payment. Prom a judgment in plaintiffs favor, entered upon the verdict of a jury, and from an order denying a new trial, the defendants have appealed. It appears from the record that on the 22d day of August, 1894, the note being then overdue, the appellant Barney H. Hattrup and E. Bunker, respondent’s husband, met at appellant’s place of business and agreed that there was then due upon the note, after making sundry reductions for credits, the sum of $715.41, principal and interest; and after deducting an account against plaintiff’s husband for liquors, amounting to $198.75, together with some minor items, all of which was agreed to by the husband, appellant made his check in respondent’s favor for the sum of $526.25, in full payment of the balance, and received from the husband the possession of the note. This check was, on the same day, delivered to the respondent, who immediately repudiated the transaction, and offered to return the check, and demanded a return to her of the note. There is some contention as to what rate of interest plaintiff was entitled to claim, the difference amounting to about $45 ; but the evidence conclusively shows that the parties agreed upon the balance that was due at the time that the transaction in question occurred, and we deem it unnecessary to go beyond that. The main question is, therefore, was the defendant entitled to offset against this note the bar bill incurred at appellant’s saloon by the husband of the respondent ? There was evidence given at the trial tending to show that the different payments made on the note were made to the husband; but this evidence was offered for the sole purpose of showing that the husband had authority, as agent of his wife, to receive payment, and such authority is not questioned by the respondent. It is urged that, plaintiff being a married woman, the presumption is that the note itself was community property, and consequently liable for the separate debt of the husband. But the pleadings raise no such issue, nor was there any evidence at the trial to support such theory. iSTor can it be told from an inspection of the record when the parties were married, whether before or after the note was given. It does appear that the court, in charging the jury, instructed with reference to the community rights of husband and wife; but these instructions could not have been to the prejudice of the defendant, because, as a matter of law, upon the case as made by the pleadings and proof, the note in question was the personal property of the respondent. The instructions were therefore more favorable to the appellants than they were, as a matter of law, entitled to, and appellants cannot avail themselves of any error in the charge as respects this phase.

We think that the verdict is supported by the evidence, and that no reversible error was committed. Affirmed.

Scott, C. J., and Dunbar, Anders and Beavis, JJ., concur.  