The opinion of the court was delivered by
Peck, J.
The action is assumpsit for use and occupation of real estate with other common counts, pleas in offset, payment, etc. The questions arise upon the plaintiff’s claim, for use and occupation. The premises consist of about fifty acres of farming lands, dwelling house and .outbuildings, in Clarendon, in which the plaintiff’s wife, Alletta^had an estate in dower, set to her out of the estate of Chris[523]*523topher Pierce, her former husband, in 1839. The defendant is the son of Christopher Pierce and his wife, the said Alletta. The plaintiff married the defendant’s mother in 1843,.and in 1844 he and his wife moved on to the premises and resided there till April, 1853, when the plaintiff let the premises on shares to one Davenport; by some agreement with Davenport, John Pierce, a brother of the defendant, soon after went into possession and occupied till April 1st, 1856, when he sold to the defendant Ms interest in the other portion of the farm, out of which this dower had been set, and made an executory contract with the defendant for the sale also to the defendant of his interest in the reversion of the dower, at his mother’s decease. The defendant went into possession of the dower April 1st, 1856, and has occupied the same, in connection with the residue of the farm, ever since. The case states that there never was any agreement between the plaintiff and defendant in relation to the occupancy of the dower by the defendant, but no question is made by the defendant but that he went into possession under such circumstances as to be liable to account for the use of the premises, if he has not already accounted. The plaintiff claims to recover for the use of the dower from April 1st, 1856, to the time of the decease of his wife, December 19th, 1863.
The defendant relies, in substance, on payment from time to time, and the jury have found the fact of payment in his favor. The questions of law, reserved by the exceptions, arise upon certain requests of the plaintiff’s counsel to charge the jury on this branch of the case, and on the charge as given on the points raised by these requests. These payments were made mostly to the plaintiff’s wife, along from time to time, and the rent settled and adjusted from time to time between the defendant and the plaintiff’s wife, as evidenced by her receipts to the defendant in connection with oral evidence. The question is as to the authority of the wife. To show such authority, the defendant introduced the following written instrument, signed by the plaintiff and addressed to the defendant, and shows its delivery to him about the time of its date :
“ Cornelius — Your mother thinks it is time for her to receive the rents and profits of her thirds, and I have no objection to her doing so. You will therefore make your payments to her as you and she [524]*524can agree, and her receipt to you shall he as good and safe for you as though signed by me.
Rutland, April 4th, 1857.
Mr. Cornelius C. Pierce, G. Cheney.”
No question is made by the plaintiff’s counsel but that this paper gave to the plaintiff’s wife some authority to receive payment of the rents, and justified the defendant in making payments to some extent to her. But it appears that some of the payments relied on by the defendant were for repairs and improvements upon the premises made at the instance of the plaintiff’s wife, under an agreement between her and the defendant that they should apply upon the claim for use and occupation, and that a considerable portion of these repairs were in .excess of, and beyond what it would be her legal duty to make as between her, as tenant in dower, and the owner of the reversion. It is insisted that the instrument in question did not authorize her to receive payment in repairs, and more especially in such repairs as she, as tenant in dower, was not legally bound to make. If the paper created an agency merely to re'ceive payment of the rent, for and in behalf of the plaintiff, and to his use, the proposition is correct, at least so far as relates to repairs she was not bound by law to make. The language of the instrument must be interpreted in the light of the existing state of things and the relation of the parties to the property to which it refers. The dower belonged to the wife, — the husband had the legal right, if he saw fit to exercise it, to receive and control the rents and profits. He had exercised that right to some extent,.at least, from the time of the marriage to the time the defendant went into possession, by occupying it and renting it on shares to tenants, but had made no contract with the defendant in relation to his occupancy. It was competent for the plaintiff to yield or waive this right in favor of his wife.’ It is obvious from the language of the instrument that he intended by it to do so. He says to the defendant, your mother thinks it is time for her to receive the rents and profits of her thirds, and I have no objection to her doing so. The expression, “your mother thinks it is time for her to receive the rents and profits, etc.,” obviously was not intended as a rebuke to the defendant for having unreasonably delayed payment; it has reference undoubtedly to the fact that up to that time he, the [525]*525plaintiff, had controlled the rents, and that his wife had expressed to him a wish to receive and control the rents and profits of her own land herself. Hence the expression which follows, “ I have no objection to her doing so.” This is not the language of a mere request to hasten payment, or a mere agency to he exercised for his benefit, it looks more like the language of yielding in favor of his wife his marital right of control over the annual avails of her estate. The words which follow favor this construction, “ you will therefore make your payments to her as you and she can agree, and her receipt to you shall be as good and safe for you as though signed by me.” Taking the whole instrument together, we think its scope and purpose was not merely to create an agency in the wife, to be exercised in behalf and for the benefit of her husband, but the yielding of his marital right of control, and conferring on her the right to deal with the rents and profits of her own property, for her use, though not to the extent of creating a liability on him. In one sense it may be said to be an agency, as it confers on his wife an authority she could not otherwise exercise without his consent; but it is not an agency in the ordinary legal sense of that term. It is a power coupled with an interest, to be exercised at her will and not his, till revoked, and to her use, not to his. In this view of the construction of the instrument it will readily be seen that the law of principal and agent, which has been so fully and ably discussed, is not strictly applicable to the case.
But it is said that if the plaintiff’s wife had the right to deal with the rents and profits for her own benefit, that in referqj^e to receiving payment in repairs, beyond what she as tenant in dower was by law bound to make, she has not done so, that such repairs were not for her benefit but for the benefit of the reversioner. But the nature and character of these repairs are not such as that we can say they were of no benefit to her. The objection to these repairs is mainly to their amount and extent, rather than to their character.
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The opinion of the court was delivered by
Peck, J.
The action is assumpsit for use and occupation of real estate with other common counts, pleas in offset, payment, etc. The questions arise upon the plaintiff’s claim, for use and occupation. The premises consist of about fifty acres of farming lands, dwelling house and .outbuildings, in Clarendon, in which the plaintiff’s wife, Alletta^had an estate in dower, set to her out of the estate of Chris[523]*523topher Pierce, her former husband, in 1839. The defendant is the son of Christopher Pierce and his wife, the said Alletta. The plaintiff married the defendant’s mother in 1843,.and in 1844 he and his wife moved on to the premises and resided there till April, 1853, when the plaintiff let the premises on shares to one Davenport; by some agreement with Davenport, John Pierce, a brother of the defendant, soon after went into possession and occupied till April 1st, 1856, when he sold to the defendant Ms interest in the other portion of the farm, out of which this dower had been set, and made an executory contract with the defendant for the sale also to the defendant of his interest in the reversion of the dower, at his mother’s decease. The defendant went into possession of the dower April 1st, 1856, and has occupied the same, in connection with the residue of the farm, ever since. The case states that there never was any agreement between the plaintiff and defendant in relation to the occupancy of the dower by the defendant, but no question is made by the defendant but that he went into possession under such circumstances as to be liable to account for the use of the premises, if he has not already accounted. The plaintiff claims to recover for the use of the dower from April 1st, 1856, to the time of the decease of his wife, December 19th, 1863.
The defendant relies, in substance, on payment from time to time, and the jury have found the fact of payment in his favor. The questions of law, reserved by the exceptions, arise upon certain requests of the plaintiff’s counsel to charge the jury on this branch of the case, and on the charge as given on the points raised by these requests. These payments were made mostly to the plaintiff’s wife, along from time to time, and the rent settled and adjusted from time to time between the defendant and the plaintiff’s wife, as evidenced by her receipts to the defendant in connection with oral evidence. The question is as to the authority of the wife. To show such authority, the defendant introduced the following written instrument, signed by the plaintiff and addressed to the defendant, and shows its delivery to him about the time of its date :
“ Cornelius — Your mother thinks it is time for her to receive the rents and profits of her thirds, and I have no objection to her doing so. You will therefore make your payments to her as you and she [524]*524can agree, and her receipt to you shall he as good and safe for you as though signed by me.
Rutland, April 4th, 1857.
Mr. Cornelius C. Pierce, G. Cheney.”
No question is made by the plaintiff’s counsel but that this paper gave to the plaintiff’s wife some authority to receive payment of the rents, and justified the defendant in making payments to some extent to her. But it appears that some of the payments relied on by the defendant were for repairs and improvements upon the premises made at the instance of the plaintiff’s wife, under an agreement between her and the defendant that they should apply upon the claim for use and occupation, and that a considerable portion of these repairs were in .excess of, and beyond what it would be her legal duty to make as between her, as tenant in dower, and the owner of the reversion. It is insisted that the instrument in question did not authorize her to receive payment in repairs, and more especially in such repairs as she, as tenant in dower, was not legally bound to make. If the paper created an agency merely to re'ceive payment of the rent, for and in behalf of the plaintiff, and to his use, the proposition is correct, at least so far as relates to repairs she was not bound by law to make. The language of the instrument must be interpreted in the light of the existing state of things and the relation of the parties to the property to which it refers. The dower belonged to the wife, — the husband had the legal right, if he saw fit to exercise it, to receive and control the rents and profits. He had exercised that right to some extent,.at least, from the time of the marriage to the time the defendant went into possession, by occupying it and renting it on shares to tenants, but had made no contract with the defendant in relation to his occupancy. It was competent for the plaintiff to yield or waive this right in favor of his wife.’ It is obvious from the language of the instrument that he intended by it to do so. He says to the defendant, your mother thinks it is time for her to receive the rents and profits of her thirds, and I have no objection to her doing so. The expression, “your mother thinks it is time for her to receive the rents and profits, etc.,” obviously was not intended as a rebuke to the defendant for having unreasonably delayed payment; it has reference undoubtedly to the fact that up to that time he, the [525]*525plaintiff, had controlled the rents, and that his wife had expressed to him a wish to receive and control the rents and profits of her own land herself. Hence the expression which follows, “ I have no objection to her doing so.” This is not the language of a mere request to hasten payment, or a mere agency to he exercised for his benefit, it looks more like the language of yielding in favor of his wife his marital right of control over the annual avails of her estate. The words which follow favor this construction, “ you will therefore make your payments to her as you and she can agree, and her receipt to you shall be as good and safe for you as though signed by me.” Taking the whole instrument together, we think its scope and purpose was not merely to create an agency in the wife, to be exercised in behalf and for the benefit of her husband, but the yielding of his marital right of control, and conferring on her the right to deal with the rents and profits of her own property, for her use, though not to the extent of creating a liability on him. In one sense it may be said to be an agency, as it confers on his wife an authority she could not otherwise exercise without his consent; but it is not an agency in the ordinary legal sense of that term. It is a power coupled with an interest, to be exercised at her will and not his, till revoked, and to her use, not to his. In this view of the construction of the instrument it will readily be seen that the law of principal and agent, which has been so fully and ably discussed, is not strictly applicable to the case.
But it is said that if the plaintiff’s wife had the right to deal with the rents and profits for her own benefit, that in referqj^e to receiving payment in repairs, beyond what she as tenant in dower was by law bound to make, she has not done so, that such repairs were not for her benefit but for the benefit of the reversioner. But the nature and character of these repairs are not such as that we can say they were of no benefit to her. The objection to these repairs is mainly to their amount and extent, rather than to their character. We can not say they were of no benefit to the tenant for life; but, on the contrary, they were beneficial to the life estate to some extent; to what extent would depend on the duration of the life on which the life estate depended. The repairs so made out of the rents and profits would increase the amount of rents the defendant ought, and [526]*526would be bound thereafter, to pay; or if the defendant should cease to occupy, the premises would command a higher rent from others ; eo that if the plaintiff’s wife had lived a great number of years, her investment in these repairs might have been a profitable one to her. Again, that was her former home ; the defendant, her son, was in possession and owned in part, at least, the reversion ; it was a place she frequently visited, and she might have had a feeling as well as an interest in favor of having the premises put and kept in a state of repair in excess of her legal obligation as tenant for life, thinking that she might live long enough to receive an equivalent, and if not, that it would enure to the benefit of her son. This may have been among the reasons that induced her to ask and obtain of her husband the power to control the rents and profits. There was some latitude for the judgment she had a right to exercise on the subject of repairs, and in the opinion of the court she did not exceed the right she had in virtue of her ownership of the property and the instrument in question, which authorizes the defendant’to make the payments to his mother as he and she could agree. Much stress is laid by the plaintiff’s counsel upon the fact, as he claims it to be, that the plaintiff, during the seven or eight years of the defendant’s occupancy, was ignorant of the manner of dealing with the rents and profits between the defendant and his mother. But if we look outside of the instrument to the conduct of the parties, it tends to confirm rather than to militate against the construction we put upon this paper. The defendant and his mother certainly have acted upon this construction. If the plaintiff during this seven or eight years, living with his wife in the vicinity of the premises, remained in ignorance, not knowing how the rents and profits were paid or appropriated, or whether paid at all, at least to a great extent, it can hardly be accounted for upon any other ground than that he understood he had abandoned the right to, and control over them, to his wife. On the other hand, if he was cognizant of the manner of their dealing, as he interposed no objection, the same inference follows. In either view, it tends strongly to show that the parties have practically put the same construction upon the instrument as the court think it bears upon the face of it. It is claimed on the part of the plaintiff that the paper in question is limited to the rents that had accrued for the year prior [527]*527to its date. But the language of the instrument will not bear that construction. It obviously has reference to the future as well as the past rents and profits, and in this respect, also, the conduct of the parties shows they have so treated it. The payments were within the scope of the power.
It is claimed on the part of the plaintiff that the temporary insanity of the plaintiff’s wife was a perpetual revocation of her authority, and that no act done by her after she was restored to reason, is binding on the plaintiff. It is unnecessary to decide whether this is the general rule appliable to a mere agency, or whether the temporary insanity only suspends the authority during the continuance of the disability. Nor is it necessary to say, if in some cases a temporary insanity of an agent is'h perpetual revocation, whether it applies to a case where the principal knows of the insanity and is in the vicinity, so that he may revoke the agency if he chooses not to have it exercised after the disability of the agent is removed. It is sufficient to say that, in this case, the case of a power coupled with an interest like the one in question, delivered to the defendant for his protection, if the plaintiff did not wish his wife to exercise the power after she was fully restored, it was his duty to revoke the power and notify the defendant of the revocation.
These views being in accordance with the decision of the county court, we find no error in the ruling of that court either in denying the instructions asked by the plaintiff, or in the instructions given to the jury. The plaintiff claims that upon any construction of the instrument the plaintiff’s wife had no power to subject the plaintiff to a liability ; and that there is error because the case shows that the jury rendered a verdict in favor of the defendant for $85. and that the case does not show for what it was rendered. But the court charged the jury that the plaintiff’s wife had no power under the instrument to contract any debt or create any liability against the plaintiff, and that the only benefit the defendant could have of the repairs and other bills for what he paid for, or furnished to his mother, was by applying it upon the rent. This was correct, and it is to be presumed that the jury followed the instructions of the court. The presumption is that"the $85. is based on some other legitimate claim for which the defendant was liable. But whether that is so or [528]*528not, the plaintiff can not, under an exception to a charge which was correct, have the judgment reversed because the jury did not follow it. The remedy, if any, was by motion to set aside the verdict as being against evidence. No such question is before us.
It is insisted by the plaintiff’s counsel that the county court erred in admitting the defendant to testify in relation to his agreements with his mother, it appearing that she was deceased. The provision in the statute on which the plaintiff relies is, “that in dll the actions, ex¿ cept actions on booh account, where one of the original parties to the contract or cause of action in issue, and on trial, is dead, or is shown to the cowt to be insane, the other party shall not be admitted to testify in his favor, etc.” The contract or cause of action in issue and on trial in this ease, is an implied contract by the defendant to the plaintiff, to pay him for the use and occupation of the premises. The parties to this contract are the plaintiff and the defendant, who are both liv-' ing. If the plaintiff’s'wife should be regarded as the mere agent of the plaintiff, acting only in his behalf and for his benefit, as the plaintiff claims, she cannot be regarded as a party to the original contract or cause of action in issue and on trial. An agent through whom another negotiates a contract, is no party to the contract in any legal sense. The agent is the person, the instrument by means of which the principal enters into the contract, hut the principal and not the agent is the party to the contract. Neither is an executor or administrator a party in this case, so as to bring the case within the subsequent» clause of the statute excluding the party when the other party is an executor or administrator, Neither does the plaintiff in any way represent in this suit, the wife or her estate. If he recovers-he recovers to his own use and not to the use of his late wife’s estate, or her x-epresentatives. If he fails to recover, the result of the suit will not prejudice her estate or her heirs or representatives. Regax-ding the plaintiff’s wife in the light in which she stands according to the construction we have given to the instrument under which she acted, neither she nor her legal representatives are parties to the contract or cause of action in issue and on trial, because the plaintiff does not succeed to her rights or prosecute for the benefit of her estate ; nor can her estate be affected by the result of the suit. The object of the provision of the statute was to protect the estates of deceased [529]*529parties. The case does not come within the mischief intended to be guarded against. • It is neither within the letter nor the spirit of the statute.
The defendant was properly admitted as a witness, and the judgment is affirmed.