The opinion of the court was delivered by
Ross, J.
The first question raised is in respect to the admissibility of the deposition of the defendant’s wife. The plaintiff offered her deposition, “ which was admitted and read, subject to objection for substance, but what the objection was, or for what reason, was not stated till the defendant presented written requests for a charge on that subject, nor was exception taken till after the charge was given.” The defendant requested the court to charge “ that Mrs. Head’s testimony cannot be received in order to show that she was made the agent of her husband.” The substance of the deposition, so far as it relates to the creation of the agency of the wife, was relevant to the issue. The deposition contains nothing in substance that is irrelevant or immaterial. The request relates to the competency of the wife to testify in regard to the creation of the agency. No objection was made to the admission of the deposition for that reason. The exceptions do not raise the question of the competency of the wife to testify in regard to the creation of her agency, and we do not decide whether she is a competent witness for that purpose. It would be unjust to the plaintiff to allow the defendant, after the testimony [637] is closed, and the court ready to charge the jury, to raise the question of the competency of a witness to testify on any given point in the case, when he had placed his objection on some other ground at the time the testimony was introduced. If the defendant had placed his objection upon the ground of incompetency, the plaintiff might have availed himself of other testimony on that point.
Whether the defendant was entitled to a charge in compliance with his 2d and 5th requests, depended upon the testimony in the case. The wife may as well be the agent of the husband for the payment of debts, or for borrowing money to be used in the business entrusted to her care, as for any other purpose. The plaintiff’s evidence tended to show that the defendant entrusted to his wife the care and management of the farm and of all his business affairs at Windsor, and that the plaintiff made all the advances at the wife’s request and under her direction in carrying on the farm; that the plaintiff went to Windsor to assist the wife in this business with the knowledge and-approval of the defendant. The court submitted to the jury, with very full instructions, to be found as facts from the evidence in the case, the agency, its scope, and whether the money sought to be recovered was paid for the defendant by the plaintiff by the procurement of the wife acting' within the scope of her agency. These were all facts to be determined by the jury from the evidence in the case. _ The court explained to the jury the subject of the agency so as to enable them intelligently to appreciate and determine its character and scope. This was all the defendant had a right to demand. If the jury under such instructions have found the facts against the defendant, this court cannot afford him any relief. In the cases cited by the defendant’s counsel from 7 M. & W., 596, and 2 Man. & Gran., 721, the agent exceeded the scope of his authority, and there was an attempt to justify his acts because an unexpected turn in the business required, as the agent thought, that certain acts should be performed before he could communicate with his principal. No such question arises in this case. We think the instruction given the jury required them to find that the defendant had given the wife authority to procure the money of the plaintiff for the [638] purposes for which it was used. The wife, acting under such authority, as effectually bound the defendant, by her acts, to the payment of the money, as though the defendant had procured the money himself.
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The opinion of the court was delivered by
Ross, J.
The first question raised is in respect to the admissibility of the deposition of the defendant’s wife. The plaintiff offered her deposition, “ which was admitted and read, subject to objection for substance, but what the objection was, or for what reason, was not stated till the defendant presented written requests for a charge on that subject, nor was exception taken till after the charge was given.” The defendant requested the court to charge “ that Mrs. Head’s testimony cannot be received in order to show that she was made the agent of her husband.” The substance of the deposition, so far as it relates to the creation of the agency of the wife, was relevant to the issue. The deposition contains nothing in substance that is irrelevant or immaterial. The request relates to the competency of the wife to testify in regard to the creation of the agency. No objection was made to the admission of the deposition for that reason. The exceptions do not raise the question of the competency of the wife to testify in regard to the creation of her agency, and we do not decide whether she is a competent witness for that purpose. It would be unjust to the plaintiff to allow the defendant, after the testimony [637] is closed, and the court ready to charge the jury, to raise the question of the competency of a witness to testify on any given point in the case, when he had placed his objection on some other ground at the time the testimony was introduced. If the defendant had placed his objection upon the ground of incompetency, the plaintiff might have availed himself of other testimony on that point.
Whether the defendant was entitled to a charge in compliance with his 2d and 5th requests, depended upon the testimony in the case. The wife may as well be the agent of the husband for the payment of debts, or for borrowing money to be used in the business entrusted to her care, as for any other purpose. The plaintiff’s evidence tended to show that the defendant entrusted to his wife the care and management of the farm and of all his business affairs at Windsor, and that the plaintiff made all the advances at the wife’s request and under her direction in carrying on the farm; that the plaintiff went to Windsor to assist the wife in this business with the knowledge and-approval of the defendant. The court submitted to the jury, with very full instructions, to be found as facts from the evidence in the case, the agency, its scope, and whether the money sought to be recovered was paid for the defendant by the plaintiff by the procurement of the wife acting' within the scope of her agency. These were all facts to be determined by the jury from the evidence in the case. _ The court explained to the jury the subject of the agency so as to enable them intelligently to appreciate and determine its character and scope. This was all the defendant had a right to demand. If the jury under such instructions have found the facts against the defendant, this court cannot afford him any relief. In the cases cited by the defendant’s counsel from 7 M. & W., 596, and 2 Man. & Gran., 721, the agent exceeded the scope of his authority, and there was an attempt to justify his acts because an unexpected turn in the business required, as the agent thought, that certain acts should be performed before he could communicate with his principal. No such question arises in this case. We think the instruction given the jury required them to find that the defendant had given the wife authority to procure the money of the plaintiff for the [638] purposes for which it was used. The wife, acting under such authority, as effectually bound the defendant, by her acts, to the payment of the money, as though the defendant had procured the money himself.
The defendant also requested the court to charge : 3d. “ The fact that the defendant was under guardianship, and that known to the plaintiff, puts an end to any agency which had been created by him before that time, as far as the plaintiff is concerned.” The court did not comply with this request. The plaintiff’s testimony tended to show that “ early in January, 1868, the defendant, on account of dissipation, went to the asylum for such folks at Northampton, Mass., and remained there till April, 1869, and that the plaintiff accompanied him when he went to Northampton.” The defendant introduced exemplified copies of the proceedings of the probate court for the county of Suffolk and state of Massachusetts, by which it appears that Feb. 10, 1868, while the defendant was in the asylum, that court, on the application of the defendant’s friends, appointed a guardian over the defendant as an insane person. The defendant claims this adjudication is conclusive evidence that the defendant was insane, and that insanity, so long as it continues, is the legal deail of a person so far as relates to *the power of that person to bind himself by contract, and, like natural deail, puts an end to all agencies before that time created by him. An agent always acts in the name of the principal. Agency presupposes the presence of the principal in the person of, and acting through, the agent. The power that binds is not that of the agent, but the power of the principal acting through the agent. When a person loses the power to bind himself, by his own acts, it is true, as a general principle, that that loss works a like loss in all those upon whom he has conferred the power to bind him. The plaintiff insists that, inasmuch as the defendant, at the time, was a resident of Windsor this state, and stated soto be, in the application for the appointment of a guardian, and as all the property appraised and passed into the hands of the guardian was personal property of that character which follows and has the situs of the owner, the probate court in Massachusetts had no jurisdiction, either of the person or of the property of [639] the defendant, and that the adjudication of the insanity of the defendant by that court is of no binding effect. The'jquestion of jurisdiction, in such cases, is a question whose solution is attended with no inconsiderable difficulty. We have not investigated it and do not deem it necessary to decide it, as we are of the opinion that from an adjudication that a person is insane it does not follow that the insanity is necessarily of that character which disqualifies that person from entering into a valid contract. Insanity is of almost every conceivable kind and type, from that which attaches itself to the mind when considering some particular subject* and at no other time, to that which drives the person headlong to self-destruction. From the adjudication we are unable to determine with which one of these various types of insanity the defendant was afflicted. The plaintiff’s testimony informs us that it was an ¿uncontrollable1 appetite for intoxicating drinks, and he was sacrificing his property for the gratification of this appetite. It was necessary to take from him, for the time being, the control of his personal property, to enable him to regain control over his appetite. Because he was overmastered by a depraved appetite, it does not follow that his faculties of mind and his judgment were so far impaired that he was incapable of making a valid contract. The property about which the agency was exercised was not that which was given into the custody of the guardian. To have entitled the defendant to the instruction requested, he should have accompanied the adjudication of insanity with evidence showing that the insanity was of that character that disqualified the defendant from making a valid contract. This disposes of all the questions relied upon by the defendant.
Judgment affirmed.