
    DOWLING v. DOWLING.
    1. Husband and Wipe — Competency as Witnesses.
    In a suit by a wife against her husband, the wife is competent, to testify, under 3 How. Stat. § 7546, without his consent, in relation to a business transaction between them which is the subject-matter of the suit.
    2. Same — Earnings op Wipe.
    It is competent for a husband and wife to agree that the wife’s earnings shall be her individual property.
    Error t'o Wayne; McMahon, J., presiding.
    Submitted February 3, 1898.
    Decided March 15, 1898.
    
      Assumpsit by Caroline C. Dowling against Charles F. Dowling for money had and received. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    
      James H. Pound, for appellant.
    
      Grove Campbell, for appellee.
   Montgomery, J.

Plaintiff and defendant are husband and wife. The plaintiff brought this action to recover the sum of $350 and interest, and gave testimony tending to show that she loaned the amount to defendant shortly after her marriage to him. Defendant admits that he received of her $263, but denies having received more, and also denies that the money was a loan, but testifies that the money was placed in a common fund with money of defendant, which was used - by him in the meat business. The defendant also claims a set-off. It appears that, after engaging for a time in the meat business, that undertaking proved a failure, and the plaintiff and defendant engaged to work at farm work, and later worked in the Illinois Insane Asylum for wages; that out of these wages a sum ($300 as defendant claims; $200 as plaintiff concedes) was loaned to plaintiff’s brother-in-law, one Gustave Schufte, and ' that it is now held by him (Schufte) payable to plaintiff. Plaintiff testifies that, when the two engaged at service, it was understood between them that she should receive her earnings, and that the money loaned to Schufte was her money.

The record contains a large number of assignments of error, but we find it wholly unnecessary to discuss any considerable number of them. It is settled that the wife may testify in relation to business transactions with her husband. Indeed, the statute (3 How. Stat. § 7546) scarcely needs interpretation.' But, if it does, it has been construed in Hunt v. Eaton, 55 Mich. 362. It is also settled that the husband may agree that the earnings of the wife may be her individual property. Mason v. Dunbar, 43 Mich. 407 (38 Am. Rep. 201).

The learned circuit judge, in his charge, covered fairly every aspect of the case. He charged, in substance, that, if there was a contract between the parties to consider the advance made by plaintiff to defendant a loan, it should be so treated, and that this might be gathered from the situation and circumstances and what the parties said; but if, on the other hand, the plaintiff simply contributed the money to assist defendant, without any understanding that it should be repaid, or with the understanding that she went into the business taking the risks and consequences which might ensue, and the money was lost in the business, she could not recover. As to plaintiff’s earnings, the court charged that ordinarily the husband is entitled to the wife’s earnings, but that it is competent for the parties to agree that the wife should have her earnings, and that, “if the husband so consented, the earnings would belong to her, but, if he did not consent to it, he has a right to her earnings, — her earnings are his property.” The court left it for the jury to say whether the money loaned to Schufte belonged to plaintiff or defendant, and charged that, if the money belonged to defendant, and was loaned to Schufte in such a way that defendant cannot get it, and that it is payable to plaintiff, it constitutes a set-off, and that the jury would have a right to reduce plaintiff’s claim by the amount. These directions fairly present the issue.

We discover no error in the record, and the judgment will be affirmed.

The other Justices concurred.  