(s) Lickbarrow v. Mason, supra.
(t) As to what the words "documents of title" embrace, see 5 & 6 Vict., c. 39, s. 4.
Before leaving the subject of contracts by agents, I will advert to the topic which in a former lecture *I reserved for this period, that, namely of a wife's power to bind her husband by contract. Now it is a principle, as old as the time of Fitzherbert (y), that, whenever a wife's contract made during marriage binds the husband, it is on the ground that she entered into it as his agent.1 Thus, where the plaintiff sold ness of which she was in the habit of conducting (b). But, on the other hand, where she equally carried on the business of the shop by her husband's authority, and attended to all the receipts and payments, a statement made by her that she would pay her rent on the day it would be due if it was remitted to her by her husband in time, and that the amount was £6, was held not to be evidence against her husband of the terms of his tenancy (c). The difference is obvious between the two cases; for, *though the wife might be the agent of her husband to make payments, she is not on that account necessarily his agent to admit an antecedent contract. Therefore, if the admissibility of her statement be rested on the ground of its being evidence of an antecedent lease, it must fail. Neither does her agency to make payments constitute her an agent to take a lease for the benefit of her husband.
(u) A somewhat similar exception we have already considered, ante p. *248, where we saw that a purchaser under a contract voidable by reason of fraud may yet give a good title to an innocent purchaser for value. Both exceptions probably depend on the same principle.
(x) See the judgment of Willes, J., in Fuentes v. Montis. L. R. 3 C. P. 268; 37 L. J. (C. P.) 137; and that of Lord Blackburn, then Blackburn, J., in Cole V. North Western Bank, L. R. 10 C. P. 357; 44 L. J. (C. P.) 233.
(y) Fitz. Nat. Brev. 27, C.; lb. 118, F.; lb. 120, G
1 Sawyer v. Cutting, 23 Vt. 486; Leeds v. Vail, 15 Pa. St. 185; Alexander v. Miller, 16 lb. 215; Burk v. Howard, 13 Mo. 241; Swett v. Penrice, 24 Miss. 416. If a husband allow his wife to conduct business as a trader, he is liable on her contracts: Godfrey v. Brooks, 5 Harring. 396; Cropsey v. M'Kinney, 30 Barb. 47. The husband is liable for goods furnished to the wife suitable to their station in life when he has knowingly permitted the wife to retain them : Gilman v. Andrus, 28 Vt. 241; Ogden v. Prentice, 33 Barb. 160.-s. 490 music to a married woman living with her husband, and sued the husband for the price, and the only question left to the jury was, whether the music was necessary for the wife in her station, this was held wrong, as the question ought to have been, whether the wife had the husband's authority to purchase (z). Now, she may be appointed his agent in the same way that any other individual may, either by express words or by implication, as I have already mentioned, and you will find that illustrated by the case of M'George v. Egan. There the defendant's wife had put her brother's child to school with the plaintiff, and the defendant had occasionally visited the child at the school, and was in the habit of paying for a variety of articles ordered by his wife for the use of his house, and amongst them he had paid a carver and gilder's bill incurred by the wife; although it was contended that these facts afforded no inference that the'defendant had authorized the *wife to incur the debt claimed by the plaintiff, the Court held, that it clearly was evidence of her having authority to contract that debt, although it was slight (a). Thus, also, where the plaintiff, in order to substantiate a demand for goods sold to the defendant, proved that he had a shop, in which his wife served and carried on the business of it in his absence, and that, on applying to her for the price of the goods, she said she would pay it if he would allow £10, which she claimed, and give a receipt in full; the Court thought that this was evidence from which it might be presumed that the wife was acting within the scope of her authority when she offered to settle a demand for goods delivered at a shop in which she served, and the busi(z) Reid v. Teakle, 22 L. J. (C. P.) 161; 13 C. B. (76 E. C. L. R.) 627, S. C; Lane v. Ironmonger, 13 M. & W. 368. (a) 5 Bing. N. C. (35 E. C. L. R.j 196.
I am not, however, now speaking of that sort of agency which is purely conventional, and in no way depends on the relation of husband to wife, inasmuch as it may be conferred on any one else; but of another and a peculiar sort of agency, which is implied from the circumstance of two persons living together as man and wife, from which circumstance a presumption arises that the wife has authority to bind the husband by her contracts for necessaries suitable to his fortune and rank in life.1 This is very clearly explained by Lord Holt
(b) Clifford v. Burton, 1 Bing. (8 E. C. L. E.) 199.
(c) Meredith v. Footner, 11 M. & W. 202.
1 This agency (the existence of which is a question for the jury, Lane v. Ironmonger, 13 M. & W. 368; Casteel v. Casteel, 8 Blackf. 240), is, however, so far as necessaries are concerned, to be presumed from the mere fact of cohabitation: M'Cutchen v. M'Gahay, 11 Johns. 281; Fredd v. Eves, 4 Harring. 385; in Etheriiigton v. Parrott (d), where he says : " It is the cohabitation that is an evidence of the husband's assent to contracts made by his wife for necessaries." But then this must be taken subject to three observations: first, that the contract must be for necessaries; secondly, that the party *making it must not have been forbidden to trust her; and thirdly, that the presumption must, in the case of contracts entered into since stat. 45 & 4(3 Vict., c. 75 (Married Women's Property Act, 1882) came into force, be considered subject to the qualification contained in sect. 1, sub-sect. 3, of that Act, which enacts that "every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown."