Bickford v. Dane , 58 N.H. 185 ( 1877 )

The nonsuit was properly denied. The fact that the defendant's husband employed the plaintiff to make the repairs on her house, and that she knew they were made and gave directions about them at the time, was evidence from which a jury might find the husband an authorized agent to contract for the repairs, or a ratification on her part of the contract he had made. The circumstances under which the labor was, done, and her connection with it, were not conclusive evidence of an understanding on her part that she was one of the contracting parties. She could bind herself to pay for the repairs. She could authorize her husband, as her agent, to make the contract for the repairs. Without such authority she could ratify any contract he might have made for them. But she would not be bound by a contract which she neither authorized, ratified, nor understood that she was making. Whether or not she authorized her husband to make the contract, or so held him out that she is estopped to deny his authority, or whether or not she understood that she was to be charged with the cost of the repairs on the house, are questions of fact for the jury. She could be cognizant of the fact that the repairs were made, without binding herself to pay for them. She could give directions about them, without estopping herself from denying the contract. To bind herself, there must have been an intention on her part to do so, or an understanding that she was so contracting. On the facts stated, the law would not conclusively imply such an understanding and consequent promise to pay for the repairs, but these might be inferred from the evidence by the jury. Caswell v. Hill,47 N.H. 407, 411; Houston v. Clark, 50 N.H. 479, 481; Hall v. Young,37 N.H. 134, 146; Morse v. Mason, 103 Mass. 560.

The error in the instructions was, in making certain evidence conclusive of a presumption in law against the defendant, and so shifting the burden of proof. It is settled by our decisions, that in such cases there is no legal presumption shifting the burden of proof. Gray v. Jackson, 51 N.H. 9,12-15, 36, 37; Bundy v. Hyde, 50 N.H. 116, 122; Delano v. Goodwin,48 N.H. 203, 204.

New trial granted.

BINGHAM, J., did not sit.