#### MORSE & RODGERS, Inc., v. LOUIS SCHULTZ.

(Filed 4 October, 1911.)

Principal and Agent — Husband and Wife — Goods Sold and Delivered — Feme Covert — Sign—False Representations — Questions for Jury.

In an action to recover from the husband the purchase price of goods sold and delivered, there was evidence tending to show that plaintiff’s salesman made the sale in the store of the wife, ' with her name properly displayed by sign reading “M. Schultz,” in accordance with the provisions of Revisal, sec. 218; the transaction was conducted personally with the husband, L. Schultz; and the evidence was conflicting as to whether the plaintiff’s salesman thought the husband’s name was Max and was led to believe that he was the M. Schultz to whom the goods were sold, and not to his wife, Mamie; that the salesman made the order to Max S., and was corrected so as to make it read to M. Schultz; that the impression was caused by the representations of defendant, as an inducement to the trade, reasonably relied upon by the plaintiff, that the sale was being made to the husband; that the husband appeared to have full control or management of the store: Held, an instruction was erroneous that fixed the liability upon the husband unless the jury found that he informed the salesman at the time that he was the agent of his wife, or unless the salesman ascertained that fact from the sign displayed; (1) the burden of proof was on the plaintiff to show that the husband, by false representations reasonably relied on, had imposed himself upon the company or its agent as M. Schultz, and assumed that essential portions of plaintiff’s evidence should be accepted as true; (2) it ignored defendant’s evidence, that about *166five months previous he had informed the managers of plaintiff corporation, at its home office, that he was acting merely as agent for his wife.

Appeal from Ward, J., at Second March Term, 1911, of Nash.

Civil action to recover $341, with interest from 4 October, 1909, as the contract price of goods sold and delivered.

The jury rendered verdict as follows: “Is defendant indebted to plaintiff, as alleged in the complaint, and, if so, in what amount? 'Answer: Yes, $341, with interest from 4 October, 1909.”

Judgment on the verdict, and defendant excepted and appealed.

E. B. Grantham for plaintiff.

T. T. Thorne for defendants.

Hoke, J.

On the trial, and after the jury was impaneled, admissions were made as follows: “It was admitted, for the purposes of the trial, that on 4 September, 1909, the time when the goods were sold for the purchase price for which the suit was brought, that the goods were billed out to and shipped to M. Schultz, the wife of the defendant, who at that time was conducting business in her own name, and who had conspicuously displayed at her place of business a sign in conformity with section 218, Eevisal 1905. It was further admitted that the goods shipped, and amounting to $341.50, had not been paid for.”

Evidence was then offered on the part of plaintiff tending to show that in April, 1909, at Rocky Mount, N. C., the place of business of M. Schultz, plaintiff sold the goods to defendant, for delivery in September following. That the sale was made, and credit given to defendant, personally, under the impression that defendant himself was the M. Schultz to whom the goods were afterwards shipped, and that this impression was caused by representations of the defendant, as inducements to the trade, reasonably relied upon by plaintiff company. C. C. Alcorn, a witness for plaintiff, testified that he was the agent *167wbo effected tbe sale; tbat be dealt witb defendant and sold tbe goods under tbe impression tbat be was tbe proprietor of tbe business and tbat bis name was M. Scbultz. Tbat be did not observe tbe sign referred to in tbe admission, but defendant alone was there, in apparent charge and control of tbe store, and negotiated tbe trade. ..That plaintiff thought defendant’s name was Max, called him Max and billed tbe goods to Max, but stated further tbat defendant rubbed tbe name out and substituted M. Scbultz. This witness further stated tbat be’ knew defendant’s wife was named Mamie. Tbe deposition of Arthur Pattison, vice president and one of tbe managers of plaintiff company, was then offered in evidence, in which it was stated, among other things, tbat in November, 1908, defendant was in plaintiff’s place of business in New York and represented tbat be was named M. Scbultz and tbe proprietor of this business, and bought a bill of goods in tbat name, which were paid for, and tbat tbe present bill was sold under tbe impression so caused tbat tbe sale was being made to defendant, etc.

Defendant, a witness in bis own bebal-f, denied tbat be bad represented himself to be M. Scbultz; said tbat tbe salesman, Alcorn, knew tbat defendant’s name was Louis, and was fully aware of tbe fact tbat tbe business belonged to bis wife and was conducted in her name of M. Scbultz. He denied further tbat be bad represented himself, in New York, to be M. Scbultz, tbe proprietor of tbe business, but tbat be bad then told plaintiff’s officers tbat be was only a buyer for tbe firm.

On this and other relevant testimony tbe court. charged tbe jury, “tbat unless tbe defendant, at tbe time of making tbe bill for which tbe suit was brought, told tbe witness, Alcorn, tbat be was tbe agent of M. Scbultz, or unless tbe witness ascertained such fact from tbe sign displayed in accordance witb section 2118 of tbe Revisal, at M. Schultz’s place of business,. ' or by some other reasonable means such fact was made known to Alcorn at or before tbe time of making tbe sale, then tbe defendant would be personally liable for tbe plaintiff’s account, and tbe jury should so answer tbe issue”; and we are . of opinion tbat this was not a correct rule to guide tbe jury in their determination of tbe issue.

*168Tbe plaintiff, at tbe beginning of tbe trial, bad admitted tbat tbe goods bad been billed out and shipped to M. Scbnltz, tbe wife of defendant, wbo was there conducting tbe business in her own name, and in tbe presence of this admission, and on general principles, if plaintiff sought to charge defendant personally, whose name was Louis Schultz, tbe burden was on tbe company to show tbat tbe present defendant, by false representations, reasonably relied upon by them, bad imposed himself upon tbe company or its agent as being M. Schultz, and tbat be, and not M. Schultz, was tbe real debtor; and tbe charge in question, duly excepted to, erroneously places on defendant tbe burden of excusing himself, thereby assuming tbat essential portions of plaintiff’s evidence should be accepted as true, and is further objectionable in restricting tbe jury to what took place between tbe defendant and tbe salesman, Al-corn, thereby ignoring tbe testimony of defendant to tbe effect tbat, on tbe November previous, not more than five months before this order was taken, be bad personally informed tbe owners and managers of plaintiff company tbat be was only a buyer for M. Schultz, to whom tbe goods were billed and shipped. This objection is emphasized by tbe fact tbat tbe witness, Alcorn, in bis testimony, further stated tbat after negotiating tbe sale, when be went back to New York be advised tbe bouse not to ship tbe goods, showing tbat, in completing tbe sale, tbe management acted to some extent on their own knowledge of conditions and were not influenced altogether by tbe account this witness may have given them.

There is error which entitles defendant to have tbe cause tried before another jury, and it is so ordered.

New trial.