The opinion of the court was delivered by
Kellogg, J.To determine whether the defendants were entitled to the instructions claimed at the trial below, and consequently to a verdict, it becomes necessary to inquire, whether the facts found justify the conclusion, that the contract between Mrs. Frazier and Hindman, respecting the payment of the bank note by Hindman and the giving up the note in question, was originally made with the assent of Mr. Frazier either express, or implied, or was subsequently adopted by him. For the power of the wife to bind her husband by her contracts is founded upon the sole ground of agency, she having, as wife, no original and inherent power to bind him by any contract made by her. Benjamin v. Benjamin, 15 Conn. 347. Lane v. Ironmonger, 13 M. & W. 368. Freestone v. Butcher, 38 E. C. L. 269.
Hence it is incumbent upon the defendants, in establishing their defence, to show that the contract, between Mrs. Frazier and Hind-man, upon which the defence rests, was authorized by Mr. Frazier. This authority may be general, or special, express, or implied. And the act of the wife, though unauthorized at the time of its performance, may be rendered valid by a subsequent ratification by the husband. The wife, whether the husband is absent, or at home, sick, or in health, is not to be presumed his agent generally, or to be intrusted with any authority in relation to his affairs, other than that, which it is usual and customary to confer upon the wife. That the arrangement in question, entered into with the defendant Hindman, does not fall within the ordinary powers of a wife in the management of the domestic affairs of her husband, is quite obvious.
The act of Mrs. Frazier, the validity of which is in question, de*491rives no aid from the law, which, under certain circumstances, authorizes the wife to bind her husband for necessaries for herself and family. The arrangement was not made for any such purpose and consequently can only be sustained upon the ground of the husband’s assent. It is not pretended, that Mrs. Frazier had any express authority from her husband to make the arrangement,^ and the facts preclude all presumption of any implied assent on his part. For at the time of her making the contract with Hindman, Frazier was incapable of doing any business, his mind was wandering, and he was unconscious of what was transpiring, and he continued in that situation until his death. There consequently could have been no subsequent ratification of the contract by Frazier.
But it is said, that, under the circumstances of this case, it should be presumed, that Mrs. Frazier acted as the agent of her husband in making the contract with Hindman, inasmuch as there was no other person to transact his business, — that this results from the necessity of the case, — and that the presumption is not to be controlled by proof of want of express authority. Should this proposition be admitted, it would seem to follow, as a necessary consequence, that the wife, in all cases like the present, would be invested with a general and unlimited authority as to all her husband’s affairs. We know of no authority to sustain such a doctrine. That Mrs. Frazier, under the circumstances, was justified in taking care of the property and providing necessaries for the family is conceded. To that extent she might well be regarded as the head of the family. But this would by no means constitute her the general agent of her husband and authorize her to transact hidymsiness generally, — to transfer his property and pay his debts. ^^fttend the powers of the wife, as claimed in the present case,^^KT be without precedent, as it seems to us.
The case of Felker v. Emerson, 16 Vt. 653, was much relied on at the argument, as sustaining this defence; but we think it affords it no support. Emerson, as an officer, attached the property of Felker, including his cattle and hay, at the suit of a creditor of Felker, who was then absent from home and had been for two months. Felker left his wife and minor children upon the farm with the property attached. After the attachment, Emerson, with the consent of Felker’s wife, fed the hay in controversy to the cattle. Felker, up*492on his return, sued Emerson for the hay so fed to the cattle; and it was held, “ that Felker was so far interested in the support of the cattle, that it must be considered a matter fairly within the general scope of his business, which was left in charge of his wife; — that she must, in his absence, be considered the head of the family, and his general agent for all the purposes of the business left under her charge and control.” If the cattle had not been attached, it would clearly have been the duty of Felker’s wife to cause the hay to be fed to the cattle; and it would seem from the case, that the court considered, that the cattle, after the attachment, were to be kept at the expense of Felker. It was therefore simply an assent by the wife, that the hay should be fed to the cattle, which the husband must have expected would be done, when he left home. The attachment of the cattle did not remove Felker’s interest in their support; and hence it might well be said to fall within the scope of her agency.
In Church v. Landers, 10 Wend. 79, where the wife, in the absence of her husband, had let a horse to a neighbor, and upon the return of the husband he brought trover for the horse, the action was held not to lie, for the reason, as the court say, “that in the absence of the husband, the wife must be considered as having a general authority to exercise the usual and ordinary control over his property, which must be possessed by some one; unless it appeared he had constituted some other person his agent for that purpose.” The court evidently treat the act of lending the horse as one ordinarily exercised by the wife in the absence of the husband.
The case of Rotch v. Miles, 2 Conn. 638, is entirely unlike the case at bar. There the husb^^ttserted his wife, leaving her keeping a boarding house for thes!||rort of herself and family, and the court held, he was liable for her contracts made in the course of such business. The decision is put upon the ground, that the husband, with full knowledge of the business in which his wife was engaged, permitted her to prosecute the business for the support of herself and children, and from, this his assent might well be inferred, and that consequently he was liable for her debts, contracted in the business. This does not militate against the ground we assume in this case.
.Again., it is .urged, that inasmuch as the plaintiff received this *493note of Frazier when it was overdue, he took it subject to all equities ; and that the defendants are entitled to avail themselves of any matter of defence, which they could have done, had the suit been brought by Frazier. This may be admitted, and yet, I apprehend, the defence would not avail them. For in order to entitle these defendants to treat the payment of the bank note by Hindman, as so much payment upon the note in suit, it is necessary to show, that Mrs. Frazier had authority to make such arrangement with Hind-man. This, however, the defendants fail to do. Upon the question of the authority of Mrs. Frazier to make this contract the whole defence depends, and it seems to us, that the testimony has no tendency to prove such authority.
It is farther objected, that the court erred in admitting certain depositions. Inasmuch as the defendants claimed, that the circumstances were sufficient to raise the presumption, that Mrs. Frazier was authorized by her husband to make the arrangement in question, the depositions were clearly admissible, to rebut such presumption. Selw. N. P. 288. Benjamin v. Benjamin, 15 Conn. 355. For if any such presumption was raised by the testimony, it was a presumption of fact, and therefore was subject to be rebutted.
It is farther objected, that the plaintiff was not entitled to recover the amount of the note in suit. It appears to us, that this objection is unsound. If the plaintiff is entitled to recover any thing, we do not see, why he is not entitled to recover the amount of the note. The entire note was transferred to him, and by the transfer the plaintiff acquired all the interest of Frazier in the note; — though, as between the plaintiff and the estate of Frazier, he will be bound to account for the difference betw^^Bp demand against Frazier and the amount of the note of FrSHr against the defendants. The plaintiff will hold the surplus in trust for the estate. But this iii no manner affects the liability of the defendants in this suit. Their defence having failed, they must be liable to the plaintiff for the amount of the note. And the same result would follow, if the note in suit had been transferred to the plaintiff solely for the purpose of collection. The judgment of the county court is affirmed.