
    George F. Wilson et al., App’lts, v. Sarah E. Underhill, Resp’t
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    Husband and wife—Agency.
    Where, in an action against the wife for goods sold to the husband, it appeared that he was carrying on the business of farming, received the profits and earnings thereof and paid its expenses, and the goods purchased were for use in that business, the fact that she was the owner of the farm is not sufficient to show that he was her agent.
    Appeal from a judgment of nonsuit.
    
      A. M. & G. Card, for app’lts; Hackett & Williams, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the defendant entered upon a nonsuit at circuit. There is also an appeal from an order denying plaintiffs’ motion for a new trial on newly-discovered evidence. The action is to recover for goods sold and delivered. There is no dispute as to the sale or the value of the goods sold. It is conceded that the sale was made to the husband of the defendant, and that the credit was extended to him. The only ground upon which the defendant can be held liable is that in fact the husband was the agent of the defendant, and that the goods sold were for her use and benefit. The defendant’s husband carried on the business of farming, and the goods purchased were for use in that business. He received the profits and earnings of the business and paid its expenses, the plaintiffs dealing with him for nearly 20 years. The only evidence to establish the fact that the wife was the real principal was proof that she had at all times been the owner of the farm, and that, after plaintiffs’ claim accrued, she conveyed the farm and personal property on it. We think this evidence was insufficient to justify the submission to the jury of the question of the husband’s agency, nor did the facts disclosed in the affidavit made on the motion for a new trial supply the defect.

The judgment and order denying motion for a new trial, appealed from, should be affirmed, with costs.  