Willson v. Sands

Stewart, J., delivered the opinion of the Court. The plaintiff’s wife and the .defendant were the owners of adjoining lands, and .the suit was brought to recover for one-half of the expense of a divisional fence, put up, as plaintiff alleges, under a contract with him, that the defendant would pay him the one-half of the cost thereof. The defendant insists that the .fence was put up by the plaintiff as the agent of his wife, and on land belonging to her,, and from materials procured therefrom, and therefore under the contract he cannot maintain the action in his own name for the recovery of the claim. The defendant submitted the prayer substantially, “ that if the jury, believed from the evidence the plaintiff had the division fence put up as the agent of his wife, he could not recover.” The Circuit Court refused this instruction, and whether there was error in this is the only question. • Assuming- the prayer to be unobjectionable in other respects, it i^ clear that from the hypothesis of facts upon which it is based, the single conclusion sought to be drawn does not necessarily follow. ' The mere fact that the plaintiff acted as the agent of his wife in the erection of the fence, would not per se prevent his recovery if the contract was made with him individually, or if he had a beneficial interest in the subject-matter thereof.

Although he might have been the agent of his wife, according to the theory of the prayer, yet if the defendant promised to pay him individually, expressly or constructively for the ⁴¹ work, and he had any interest of his own in the contract, Lis right to maintain the action in his own name cannot be questioned. In other words, if tLe promise was intended to be made to him individually, although in fact he may have been the agent of his