Opinion by
Philips, P. J.
1. The action of the court in refusing to dismiss the suit at the instance of I. N. Schooler, is assigned for error. It would be sufficient to say in respect to this contention, that, even if the court erred in this matter, no one but the plaintiff, I. N. Schooler, could take advantage of it. He has not appealed from this judgment, nor is he making any complaint here of this action of the trial court. And had the court permitted him to withdraw, it would not have worked a discontinuance of the suit, because the plaintiff had abandoned his wife, abjured the state, and was living in concealment. Phelps v. Walters, 78 Mo. 320.
2. The appellant assails the whole case of the plaintiff, both on the proof and the instructions, because there was not sufficient evidence of a delivery by the husband to the wife to constitute a valid gift of personal property.
There is no question of the general doctrine that delivery of the property is' essential to constitute a valid gift of personalty, inter vivos and causa mortis. It is also equally well settled, that a husband may make a gift of personal property to his wife without the intervention of a trustee, and that the court of law will now, [76]*76as well as the courts of equity, recognize and enforce the rights of the wife in respect thereof. McCoy v. Hyatt, 80 Mo. 130-135.
In respect of the cow and calf, we think the evidence of the plaintiff was sufficient, as admitted in proof, to establish a. valid gift by the husband to the wife. He drove her up and presented her by words, and turned her over to plaintiff, who afterwards fed and milked her. This was as much an act of delivery as the situation of the parties and the property would admit of. The fact that the property in controversy remained on the place where the husband and wife lived ought not to destroy the gift. The matter of change of possession is often necessarily a relative question. Regard must be had to the relation of the donor and the donee, and the situation of the property. It would be unreasonable, as it might be utterly impracticable, for the wife, receiving such gifts from the husband, to take it away and keep it at other place than the common home.
Ch. J. Cooley, in Davis v. Zimmerman, 40 Mich. 24, speaking to a state of facts quite similar to these at bar, said: “The question of change of possession must be considered in connection with the other facts in the case. It is no doubt true that in respect to the property in general there was no open and visible change of possession. But how could there have been ? The donor and donee were living together as husband and wife, at a public hotel. Must she separate from him in order to be competent to receive from him a gift ? If he gives her a picture or an article of furniture, must she procure it to be kept by some one else instead of placing it in her own apartments ? * * * No ’doubt the circumstances of the relation, and the facility with which frauds may be accomplished under the pretense of sales or gifts between husband and wife ought to 'be carefully weighed, in determining whether or not a gift has been made, but when all are considered, the one question, and' the only question is, whether the wife has established her right by a fair preponderance of evidence ; if she has, no court has any right to require more.”
[77]*77As to the stove and household furniture, consisting of some bedding and beds, and a lamp, the wife’s testimony was that her husband purchased and presented them to her at the time of their marriage. In such case the husband, in contemplation of law, never had the possession of these articles; but both the title and possession passed to her at the time of the purchase. In such case no delivery, symbolical or actual, is necessary. Wheeler v. Wheeler, 43 Conn. 505.
3. The first instruction is assailed especially because of its direction to the jury as to what would constitute a gift from husband to wife. It may be conceded that it is faulty in declaring that mere words, indicating a present gift, would pass the title. But the instructions must all be taken together, as well as all the evidence,, and if in view of all, the verdict was for the right party it should not be disturbed, notwithstanding the faulty declaration in one instruction.
We have held at this term, in Moberly v. R. R. Co., that where a party in his instruction so limits his ground of recovery to a specified act of negligence, which was not sustained by the proof, his verdict ought not to stand merely because there was other evidence of other similar negligent act on which he might have predicated a recovery, for the reason that it would be dangerous to affirm a judgment “which might have been based on a ground not justified by the evidence.”
But the case at bar is clearly distinguishable. There was evidence here of a parol gift — words indicating both a present purpose to transfer the possession, and the act itself. That was an element of proof in establishing the gift. There was also evidence of acts a part of the res gestee, showing a delivery, bearing on the very grounds of delivery to which the words were directed. And further, the second instruction authorized the jury to find for the plaintiff if she was the owner of the property. In Bowman v. Van Kuren, 29 Wis. 210, the jury were instructed that they might find for the defendant if they found certain facts, but the instruction omitted one fact which was essential to the defence. It was held not to [78]*78be reversible error, if that was fact in proof, and there was no conflict of evidence in regard to it. The other essential fact of delivery was in evidence in the case at bar, and there is no evidence in this record contradicting the statement of plaintiff in respect thereto. In the same spirit of the code of practice is the case of Nofsinger v. Bailey, 72 Mo. 216-219, where it is held that a judgment will not be disturbed because an instruction authorized a verdict based upon insufficient evidence, where another instruction submitted to the jury an issue upon which the verdict might rest. As there was uncontradicted evidence of further acts of delivery, completing the proof, by the same witness, too, who deposed to the words evidencing the purpose to give, it is inconceivable that the jury who found for plaintiff by crediting her statement as to the words, would have found differently had the court included the facts of the husband turning the cow and calf over to the wife, and her milking, feeding and taking care of them thereafter.
4. We do not think the defendant should complain of the instruction given by the court of its own motion. It was certainly favorable enough as to the rights of an innocent purchaser. If the stove, etc., were purchased by the husband for the wife, as testified to by her, the instruction was erroneous as to her, according to the authority above cited from Connecticut. Special criticism is made by appellant on this instruction because it speaks of selling the cow to the defendant, whereas the defendant’s evidence was that his wife bought the cow from the husband of plaintiff.
We might with propriety apply to defendánt the maxim: common error makes right. For in the first instruction asked by him he recognized the fact that the cow was sold to him as well as the stove. But more, the defendant’s testimony touching the purchase of the cow was, that his wife bought her. At common law such purchase by the wife would have inured to the benefit of the husband.
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Opinion by
Philips, P. J.
1. The action of the court in refusing to dismiss the suit at the instance of I. N. Schooler, is assigned for error. It would be sufficient to say in respect to this contention, that, even if the court erred in this matter, no one but the plaintiff, I. N. Schooler, could take advantage of it. He has not appealed from this judgment, nor is he making any complaint here of this action of the trial court. And had the court permitted him to withdraw, it would not have worked a discontinuance of the suit, because the plaintiff had abandoned his wife, abjured the state, and was living in concealment. Phelps v. Walters, 78 Mo. 320.
2. The appellant assails the whole case of the plaintiff, both on the proof and the instructions, because there was not sufficient evidence of a delivery by the husband to the wife to constitute a valid gift of personal property.
There is no question of the general doctrine that delivery of the property is' essential to constitute a valid gift of personalty, inter vivos and causa mortis. It is also equally well settled, that a husband may make a gift of personal property to his wife without the intervention of a trustee, and that the court of law will now, [76]*76as well as the courts of equity, recognize and enforce the rights of the wife in respect thereof. McCoy v. Hyatt, 80 Mo. 130-135.
In respect of the cow and calf, we think the evidence of the plaintiff was sufficient, as admitted in proof, to establish a. valid gift by the husband to the wife. He drove her up and presented her by words, and turned her over to plaintiff, who afterwards fed and milked her. This was as much an act of delivery as the situation of the parties and the property would admit of. The fact that the property in controversy remained on the place where the husband and wife lived ought not to destroy the gift. The matter of change of possession is often necessarily a relative question. Regard must be had to the relation of the donor and the donee, and the situation of the property. It would be unreasonable, as it might be utterly impracticable, for the wife, receiving such gifts from the husband, to take it away and keep it at other place than the common home.
Ch. J. Cooley, in Davis v. Zimmerman, 40 Mich. 24, speaking to a state of facts quite similar to these at bar, said: “The question of change of possession must be considered in connection with the other facts in the case. It is no doubt true that in respect to the property in general there was no open and visible change of possession. But how could there have been ? The donor and donee were living together as husband and wife, at a public hotel. Must she separate from him in order to be competent to receive from him a gift ? If he gives her a picture or an article of furniture, must she procure it to be kept by some one else instead of placing it in her own apartments ? * * * No ’doubt the circumstances of the relation, and the facility with which frauds may be accomplished under the pretense of sales or gifts between husband and wife ought to 'be carefully weighed, in determining whether or not a gift has been made, but when all are considered, the one question, and' the only question is, whether the wife has established her right by a fair preponderance of evidence ; if she has, no court has any right to require more.”
[77]*77As to the stove and household furniture, consisting of some bedding and beds, and a lamp, the wife’s testimony was that her husband purchased and presented them to her at the time of their marriage. In such case the husband, in contemplation of law, never had the possession of these articles; but both the title and possession passed to her at the time of the purchase. In such case no delivery, symbolical or actual, is necessary. Wheeler v. Wheeler, 43 Conn. 505.
3. The first instruction is assailed especially because of its direction to the jury as to what would constitute a gift from husband to wife. It may be conceded that it is faulty in declaring that mere words, indicating a present gift, would pass the title. But the instructions must all be taken together, as well as all the evidence,, and if in view of all, the verdict was for the right party it should not be disturbed, notwithstanding the faulty declaration in one instruction.
We have held at this term, in Moberly v. R. R. Co., that where a party in his instruction so limits his ground of recovery to a specified act of negligence, which was not sustained by the proof, his verdict ought not to stand merely because there was other evidence of other similar negligent act on which he might have predicated a recovery, for the reason that it would be dangerous to affirm a judgment “which might have been based on a ground not justified by the evidence.”
But the case at bar is clearly distinguishable. There was evidence here of a parol gift — words indicating both a present purpose to transfer the possession, and the act itself. That was an element of proof in establishing the gift. There was also evidence of acts a part of the res gestee, showing a delivery, bearing on the very grounds of delivery to which the words were directed. And further, the second instruction authorized the jury to find for the plaintiff if she was the owner of the property. In Bowman v. Van Kuren, 29 Wis. 210, the jury were instructed that they might find for the defendant if they found certain facts, but the instruction omitted one fact which was essential to the defence. It was held not to [78]*78be reversible error, if that was fact in proof, and there was no conflict of evidence in regard to it. The other essential fact of delivery was in evidence in the case at bar, and there is no evidence in this record contradicting the statement of plaintiff in respect thereto. In the same spirit of the code of practice is the case of Nofsinger v. Bailey, 72 Mo. 216-219, where it is held that a judgment will not be disturbed because an instruction authorized a verdict based upon insufficient evidence, where another instruction submitted to the jury an issue upon which the verdict might rest. As there was uncontradicted evidence of further acts of delivery, completing the proof, by the same witness, too, who deposed to the words evidencing the purpose to give, it is inconceivable that the jury who found for plaintiff by crediting her statement as to the words, would have found differently had the court included the facts of the husband turning the cow and calf over to the wife, and her milking, feeding and taking care of them thereafter.
4. We do not think the defendant should complain of the instruction given by the court of its own motion. It was certainly favorable enough as to the rights of an innocent purchaser. If the stove, etc., were purchased by the husband for the wife, as testified to by her, the instruction was erroneous as to her, according to the authority above cited from Connecticut. Special criticism is made by appellant on this instruction because it speaks of selling the cow to the defendant, whereas the defendant’s evidence was that his wife bought the cow from the husband of plaintiff.
We might with propriety apply to defendánt the maxim: common error makes right. For in the first instruction asked by him he recognized the fact that the cow was sold to him as well as the stove. But more, the defendant’s testimony touching the purchase of the cow was, that his wife bought her. At common law such purchase by the wife would have inured to the benefit of the husband. Her acquisitions were his. The act known as the married woman’s act of 1875 (Rev. Stat., sect. 3296), does not give the wife a separate estate in [79]*79personal property coming by purchase unless purchased “with her separate money or means.” McCoy v. Hyatt, 80 Mo., supra. There is not one word of evidence in this record indicating that defendant’s wife paid for this cow with her separate money or means. The instruction therefore properly declared the law as applied to the fact. Sloan v. Terry, 78 Mo. 623.
5. Defendant complains of the refusal of the court to give the second instruction asked by him touching the necessity of a demand. It is a little remarkable, in view of defendant’s testimony, supplemented by all the Schoolers, of lesser degree, that the paternal and the maternal Schooler had purchased outright the cow and calf, and stove, and were claiming the right to hold them as innocent purchasers, for value, that defendant should ask an instruction predicated on the theory that he was .a mere bailee — a naked depositary or mandatary of the property. Even as such bailee, at common law, the property not having come to his possession under any contract, express or implied, with the plaintiff, he was not entitled to a demand before action could be maintained. Irwin v. Wells, 1 Mo. 9 ; Primm v. Cobb, 63 Me. 200. Nor should he be heard to plead the want of demand when throughout the trial he contested plaintiff’s ownership of the property and asserted superior right-in himself. “When he desires to rely on a want of demand, he should show a willingness to deliver the goods upon a proper one, and that one had been made. ’ ’ Wells on Replev., sect. 374. Under our statute (Rev. Stat., sect. 1018), this claim is, not allowable, for the defendant has neither pleaded it, nor offered to return the property.
6. For the first time on the oral argument of this case in this court, defendant raises the question that so much of the testimony of the plaintiff, as' relates to statements made to her by her husband about giving her the cow, etc., was incompetent. This evidence was admitted at the trial without objection. No such question is presented to this court for review in the brief of counsel filed in this court prior to its submission. This [80]*80question, therefore, is not before this court for determination. See rule 17 of this court.
As tried by the defendant he lost his case before the jury. That the jury should have credited the evidence of the plaintiff is not strange. It was human. Deserted in the sore hour of her confinement by an unfeeling husband, the other Schoolers seem to have conspired to> complete her misery by clutching at the little that was left of her humble home — the stove over which she had bent and cooked her frugal meals; the bed and bedding on which she slept as young wife — the very lamp that lighted her home by night, and the cow she fed, cared for and milked to supply their table. And as the crowning act of this unseemly contention, made with her by the fugitive husband’s family, he was induced to come from his hiding place long enough to appear “in writing” at this trial and seek to turn her from the courts of jusr tice by attempting to dismiss her suit. We shall not disturb the verdict of the jury, nor the judgment of the trial court. Judgment affirmed.
All concur.