dissenting. The plaintiff seeks to recover of the wife for the purchase-price of lumber which the plaintiff had furnished to the husband and which went upon the wife’s land. The plaintiff must recover upon the theory that the debt was that of the wife through the husband as her agent, and that she either authorized the husband to act for her in purchasing the material of that she afterwards ratified the transaction. The plaintiff must recover on his own testimony; and where this testimony is vague and equivocal, it must be taken most strongly against him. Nowhere does it appear from the evidence that the material furnished was charged to the defendant. The account sued on, which is attached to the petition, appears to be charged to the husband and not to the defendant. The evidence is conclusive that the plaintiff, in furnishing the material dealt with the husband and not with the wife. The plaintiff in his testimony refers to his “contract with Mr. Hall,” that the husband “owed me all that money, and yet I was willing to credit him for this last load.”
I am of the opinion that the evidence is insufficient to authorize the jury to find that the plaintiff contracted with the defendant through her husband as agent, or that she is liable for the debt upon the theory of ratification. Construing the plaintiff’s testi*750mony most strongly against him, it must lie taken as establishing the contract between him and the defendant’s husband, and that the credit was extended to the husband and not to the wife. I. am of the opinion that the court erred in not sustaining the defendant’s certiorari.