
    Elizabeth A. Bergen v. Henry Keiser.
    Husband and wife.—When a married woman permits her husband to use and control her property she must see that his acts are within the poivers given him; and if she knows he has exceeded his authority in dealing with third parties, and the circumstances are such as good faith tothemwouldrequireherto speak, and she fails to do so, she will be as fully bound by his acts as though they were previously authorized.
    
      Appeal from the County Court of McLean county; the Hon. B. M. Benjamin, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Stevenson & Ewing, for appellant;
    cited Gilman v. Desbron, 45 Conn. 563; Flannery v. Rohrmayer, 46 Conn. 558; Jones v. Walker, 63 N. Y. 612; Wilson v. Schuck, 5 Bradwell, 572; Geary v. Hennessy, 9 Bradwell, 17; Wendt v. Martin, 89 Ill. 139; Bliss v. Patten, 5 R. I. 379. Bates Appeal, 55 Penn. State 356.
    Messrs. Herrick, Lucas & Herrick, for appellees;
    cited. Anderson v. Armstead, 69 Ill. 452; Lovell v. Williams, 125 Mass. 347; Arnold v. Speers, 130 Mass. 347; Ewell’s Evans on Agency, 23.
   Conger J.

This was an action of assumpsit brought by appellee against appellant for the value of certain machinery purchased by appellant’s husband and placed in the mill of appellant. It appears that Mrs. Bergen traded certain property owned by her in Jacksonville for three lots in the village of Minier, with the mill in question upon the east lot, the middle lot vacant, and a dwelling house upon the west lot, in which appellant with her husband and family resided. In 1880, after making the trade, they moved into the dwelling house and Bergen commenced running the mill. There was no contract or agreement between them about the mill, except they both say it was understood the whole family was to be supported by the earnings of the mill. Bergen was insolvent, having no property except $470 worth of corn. He carried on the milling business under the name of Bergen & Co. In March, 1882, Bergen visited appellee, who lived at Bloomington, and after some correspondence bought from him a “ meal dryer,” and appellee afterward came to Minier, jiut in the “meal .dryer,” and did other repairing to the mill, amounting in all to $649.82, which by the contract was to be paid for in cash when completed. Mrs. Bergen testifies that when her husband talked about putting in a meal dryer she objected to it; that she never authorized her husband to purchase it.

The evidence shows that during all the time appellee and his men were engaged in putting in this machinery and otherwise repairing the mill, about fourteen days, Mrs. Bergen was in the mill nearly every day; that her house where she resided Avas about eighty feet distant; that AAdien appellee came to begin the Avork appellant was by her husband introduced to him, and that she at one time expressed herself to one of the Avorkmen as being pleased Avitli the work, and during all this time made'no objection by AAmrd or act to the improvements being placed in the mill.

All the parties to the transaction are presumed to liaA-e known the law. Appellee had constractive notice at least that the title to the mill Avas in Mrs. Bergen, for her deed Avas upon record, although he says in fact he did not know it. As the improvements Avere of a permanent character and affixed to the building, she is presumed to have knoAvn that they became at once her property.

Assuming that Keiser kneAVAvhat the record would disclose, would he not have been fully Avarranted in supposing Bergen was acting as the agent of his Avife in ordering the improvements placed upon the property? Finding the husband in ¡ms-session of the mill he receives from him an order for its repair, and both before and during all the time of making such repair finds the wife, the owner of the mill, present nearly every day of the íavo Aveeks occupied in doing the Avork, not only making no objection, but by her actions leading him to believe that she was entirely satisfied Avitli the whole transaction.

A single Avord of objection from her to appellee would at once have prat him on his guard, and brought things to an issue. He could, upon learning that she was unwilling to either become personally liable, or permit her property to become so, have abandoned the work, or proceeded upon the credit alone of the husband.

Both Mrs. Bergen and her Imsband kneAV that he was insolvent ; and for this insolvent husband to pilace the labor and property of appellee, to the extent of 8600, in the mill of his wife, knowing he could not p:ay for it, and she to remain silent when good faith and common honesty required her to speak, and now ask to he protected from liability because she had not previously and formally authorized her husband to make the contract, would be a fraud which we are unwilling to sanction. We think the true rule in such cases is, when a married woman permits her husband to use and control her property she must see that his acts are within the powers given him, in order that frauds may not be practiced upon others. And if she knows that he has exceeded his authority in dealing with third parties, and the circumstances are such as good faith to them would require her to speak, and she fails to do so, she would be as fully bound by his acts as though they were previously authorized. Anderson v. Armstead, 69 Ill. 452; Lovell v. Williams, 125 Mass. 347; Arnold v. Speer, 130 Mass. 347.

Objection is made to a number of the instructions given for appellee, but the only one we think subject to criticism is the 5tli.

There was no evidence upon Avhich to base it, and it should not have been given; but the jury were so fully and fairly instructed by the others that avc do not think it could have wmrked harm to appellant.

The court properly refused Mbs. 1 and 2 of appellant’s refused instructions, because they entirely exclude the idea of any subsequent ratification of Bergen’s acts by his wife. Mo. 3 was properly refused because it states, “there is no evidence in the case upon A\dnch the jury Avould be authorized to find against the defendant,” also the 4th because it states that the fact that appellant knew that her husband was contracting for the machinery would not be sufficient to charge her personally ; this Avas doubtless true, but it was singling out and making prominent certain facts to the exclusion of others, and was therefore misleading.

The 5th was properly refused because it states there is no evidence of Bergen’s pecuniary condition, thereby utterly ignoring the evidence of Mrs. Bergen upon Liat point, and also in stating that Bergen’s pecuniary condition was immaterial.

The 6th is still more objectionable as it purports to tell the jury that a long statement of facts, which are recited, would not be sufficient to charge the defendant. They would all tend to do so, and to thus single out some of the facts relied upon for recovery, and tell the jury they would not authorize a recovery, has been so frequently condemned by the Supreme Court that nothing further need be said in reference to it.

Finding no substantial error in the record and believing that substantial justice has been done, the judgment of the circuit court will be affirmed.

Affirmed.  