Hardwick v. Hardwick (1906) 130 lowa, 230, 106 N. W. 639, was an action by the wife against her husband's father, and the court held that her testimony that her husband told her that his father wanted him to leave her, and that the husband was so overcome with grief that he could hardly tell her, was not inadmissible, because of the inclusion of the declaration concerning the father's wishes. The court said that such declaration was admissible, in connection with the scene described, as tending to prove the effect of defendant's influence, if any, exerted on the son; but that its consideration should be strictly limited to the determination of the state of affection between husband and wife, and of the effect of the influence on the mind of the husband, and that the jury should be specially cautioned not to consider it, in deciding whether any such influence was in fact exerted. The recent case of Schneider v. Tapfer (1919) - Or. -, 180 Pac. 107, was an action by the husband against his wife's father. The court held inadmissible a declaration, prior to the marriage, that the father wanted her to quit plaintiff; a declaration, after the marriage, that her father gave her money for an abortion, and told her to go and have it performed, after her husband refused to give her any money for that purpose; a declaration as to the father's threat to disinherit her; and a statement showing the falsity of a statement of the father concerning her whereabouts on a particular occasion. The court said that this evidence did not tend to show happy marriage relations between plaintiff and his wife, or to throw light upon her motive in leaving him, but was hearsay and incompetent. The court then said: "In this connection, as the case will go back for another trial and these questions will all arise again, it may be proper to define what the rule is in a case of this kind as to the declarations of the alienated spouse, in the absence of the defendant. Such declarations, when made prior to the alienation, are always admissible when they tend to disclose affection and the relations between

•

the spouses. Such declarations are also admissible when they are made at or approximately before the alienation, where they are of a character likely to disclose the mind and motive of the alienated one, and the effect upon his or her mind or motive, which the supposed words or conduct of the defendant have had. To illustrate, if a wife should say to her husband, being about to leave him: 'I can't live with you any longer. My father does not want me to, and he has said so much, it has caused me to dislike you. He says if I continue to live with you he will disinherit me, and I can't give up my heritage in that way.' Such a declaration would be admissible, not, of course, for the purpose of showing that her father really had said those things, but for the purpose of showing that the acts of her father (which must be proved by other evidence) had affected her mind, alienated her affections, and caused her to leave her husband. Sometimes such declarations may be admissible when accompanying the act of leaving, as a part of the res gestæ of the act. But where the declarations are not of a character which bear upon the mental state or motive of the alienated spouse, and where they are unaccompanied by any declarations upon her part, which do bear upon her mind or motive, they are wholly inadmissible."

In a wife's action against her father-in-law, her testimony that her husband told her that his folks had talked with him, that his father had heard of their marriage (which was secret) and did not want him to live with her, and that he was going to leave her, was held competent only for the purpose of showing the effect of the father's interference, if any was shown, upon the son, with respect to the cause which prompted him to separate from his wife; and not for the purpose of establishing the fact that the father had interfered to prevent his son from living with plaintiff. Gilbreath v. Gilbreath (1908) 42 Colo. 5, 94 Pac. 23.

And in an action against a husband's parents and sister, the declarations of the husband to plaintiff with reference to what defendants had said to him were held admissible so far as they were explanatory of the husband's conduct, or indicated a reason for his leaving plaintiff; but such of them as were not explanatory of either of such matters were held inadmissible. Miller v. Miller (1912) 154 Iowa, 344, 134 N. W. 1058.

And the husband's declarations that defendant, his father, was making trouble between him and plaintiff, and wanted him to leave plaintiff, were held competent to prove the state of the husband's affection towards the wife, and the condition of his mind in consequence of any influence exerted thereon. The court, however, stated that they could not be considered as tending to prove that defendant, or anyone else, had actually exerted any such influence, or had interfered in any manner in the domestic affairs of the husband and wife. Moir v. Moir (1917) 181 Iowa, 1005, 165 N. W. 221.

And statements of plaintiff's husband to her, after their separation, that he could not talk to her, that his father had forbidden him to say anything to her, and that he had put the matter in the hands of an attorney, were held admissible. Jones v. Jones (1917) 96 Wash. 172, 164 Pac. 757. The court's quotations from other cases apparently indicate that it thought the evidence was admissible to show the effect on the husband of defendant's conduct.

And declarations of the husband, purporting to give the offers and inducements held out to him by his parents to induce him to separate from and abandon plaintiff, were held proper and competent as showing the influences producing the alienation and loss of affection complained of, and the cause of the separation, and the destruction of the marital relation. White v. White (1909) 140 Wis. 538, 133 Am. St. Rep. 1100, 122 N. W. 1051.

The wife's statement to plaintiff that defendant thought she was too nice a woman to be on a farm, if admissible at all in an action by the husband, could be considered only to show the state of the wife's feelings to

wards her husband, and not as in any degree tending to prove that defendant did the wrongful acts with which he was charged. Welty v. Sparks (1917) 179 Iowa, 1390, 162 N. W. 614.

In Remsen v. Hay (1882) 14 Ν. Υ. Week. Dig. 443, an action by the husband against his wife's father, there was evidence that the father publicly threatened to disinherit the wife unless she left her husband and came home to live, and, while the wife denied knowledge of this threat, the husband testified that she communicated it to him before she left. It was held, apparently with reference to this testimony, that plaintiff had a right to show, by what the wife did and said, the condition of her mind at the time she left him, and the causes which impelled her to the step, and that all the transactions up to the time she left were material as a part of the res gestæ; and also that the fact that one conversation took place after she had once left plaintiff did not render it immaterial, where she had returned and was in her husband's house when the conversation took place.

Pollock v. Pollock (1894) 9 Misc. 82, 29 N. Y. Supp. 37, was an action by the wife against her husband's father, and the trial court admitted a statement by the husband in the absence of defendant, which in effect attributed his abandonment of the wife to the persuasions and contrivances of defendant; but limited its admission as part of the res gestæ and tending to show the existing relation between the husband and wife at the time. The appellate court, though reversing the judgment on another ground, apparently approved the admission of the evidence for this limited purpose; but points out with evident disapproval that the limitation was subsequently disregarded, and the statement given the force and effect of evidence tending to establish the fact on which the defendant's liability was predicable.

In many jurisdictions, the courts undoubtedly intend to hold that declarations of the other spouse concerning the acts and conduct of defendant are inadmissible for any purpose. See the cases cited in the first part of this note, especially McGowan v. Armour (1918) 160 С. С. А. 576, 248 Fed. 676; Humphrey v. Pope (1905) 1 Cal. App. 374, 82 Pac. 223; Leucht v. Leucht (1908) 129 Ку. 700, 130 Am. St. Rep. 486, 112 S. W. 845; McGinnis v. McGlothlan (1915) 192 Mo. App. 141, 180 S. W. 405. In McGowan v. Armour (Fed.) supra, the court, in holding inadmissible declarations of the husband as to statements by defendant of her affection for the husband, said: "To say that the vice of this practice can be cured by admonitions to the jury as to the restricted purpose for which the evidence is received is to indulge a purely academic view of the lay mind. The verdict that was rendered in the present case is the best proof of the fallacy of such confidence." In McGinnis v. McGlothlan (Mo.) supra, the court said: "But it seems to be ruled in some jurisdictions that while evidence of what the husband or wife said to the other, relating to matters connected with their domestic concerns, may not be admitted as proof of the substantive fact of guilt of the accused party in an action for alienation, yet communications between them, though in privacy, may be received for the purpose of showing the state of feeling or affection for the plaintiff, even though this involves and includes acts, conduct, and declarations of the defendant. The point involves two considerations: One as to the right to show private communications between husband and wife, relating to the defendant; and the other the right to show such communications when they consist of declarations of the defendant made in his absence. The better rule seems to be that, in order to show the state of mind concerning the affections said to have been alienated, private communications between husband and wife may be shown, provided they do not include statements of what the defendant did or said. The latter, if allowed, could be artfully used to manufacture a case against an innocent person by mere hearsay."

The court also refers to the question of the admissibility of such declarations for a limited purpose, in Hil

lers v. Taylor (1908) 108 Md. 148, 69 Atl. 715; but it does not seem to attempt to lay down any general rule. While holding the declarations involved inadmissible, it says that the state of the husband's feelings towards plaintiff was plainly shown by other evidence; that his declarations formed but a faint and unimportant addition to the evidence on that branch of the case, while they would have tended to prejudicially affect defendant in the eyes of the jury, although confessedly incompetent to prove the act with which defendant was charged.

In Derham v. Derham (1900) 125 Mich. 109, 83 N. W. 1005, the court said, with reference to a declaration of plaintiff's husband that his folks did not like plaintiff, and that he had a chance to marry others and wished he had, that it might have been admissible to show the husband's feeling towards plaintiff; but that as substantive proof of defendant's relations to the parties it was hearsay.

In Allen v. Forsythe (1912) 160 Mo. App. 262, 142 S. W. 820, statements by plaintiff's wife, tending to show the effect produced on her mind by the conduct of defendant, were held admissible for the purpose of showing the feelings or mental condition of the wife, and her reason for failing to perform the marital contract; but whether the statements referred to defendant's acts or conduct does not clearly appear, though the objection was that the evidence was hearsay.

In Warren v. Graham (1916) 174 Iowa, 162, 156 N. W. 323, an action by the wife against another woman, and Rose v. Mitchell (1899) 21 R. I. 270, 43 Atl. 67, an action by the husband against another man, the declarations of the spouse whose affections were claimed to have been alienated, concerning the declarant's affection for defendant and the state of declarant's mind toward plaintiff, were held admissible to prove the loss of affection, but not to prove defendant's agency.

In Ward v. Thompson (1911) 146 Wis. 376, 131 N. W. 1006, the declarations of plaintiff's wife that she was going to meet defendant, that she was tired of the life she was living, and wanted a different life, which her husband could not give her, and money and good clothes, and that defendant was rich and she wanted some of his money, were held inadmissible, as hearsay, upon the question of defendant's guilt; but, on the question of damages, admissible in defendant's favor, as tending to show the wife's feelings toward her husband, the state of their married life, and the mental and moral make-up of the wife; and also as tending to show whether she was seduced by defendant, or was yielding to the dictates of a licentious or mercenary disposition.

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Where, in the husband's action, the wife testified for defendant, and denied the acts charged, a copy of a letter written by her to defendant in the husband's presence, acknowledging improper relations with him, and

insisting that he must have no further communication with her, was held competent to impeach the wife, though defendant denied receiving the letter. Weston v. Weston (1903) 86 App. Div. 159, 83 Ν. Υ. Supp. 528.

In a husband's suit for divorce, with claim for damages against the corespondent, in which the wife did not appear, and in which the corespondent alleged collusion between the husband and wife, the testimony of a witness that she communicated to the husband the wife's confession of adultery with the corespondent, and the details of the statement made by the witness to the husband, were competent to rebut the charge of collusion, by showing the information on which the husband acted in seeking a divorce. Farulli v. Farulli, L. R. [1917] P. (Eng.) 28, 86 L. J. Prob. N. S. 35, 116 L. T. N. S. 18, 81 J. P. 28, 61 Sol. Jo. 116. А. МСТ.

V.

Subrogation - right of surety.

Evidence - sufficiency.

2. Evidence considered, and held to justify the trial court in finding that the purchaser of grain from a warehouseman with whom it had been stored bought in good faith, without notice of the fact that its vendor did not own the grain. Warehouseman - bailment - sale.

3. Unless the circumstances under which such grain was offered for sale were such as to make it the duty of a prudent and honest man to make inquiry concerning its ownership, the puchaser thereof was not chargeable

Headnotes 1-5 by LEES, C.

with constructive notice of the fact that his vendor was only a bailee of the grain.

- right of purchaser.

4. The equities of one who buys grain in the open market, in good faith and for full value, from a warehouseman with whom it was stored, are superior to those of the surety on the bond of the latter, given for the protection of those storing grain with it, where such warehouseman has become insolvent and the surety has been required to pay the amount of the bond.