#### Cowie, Appellant, vs. National Exchange Bank of Waukesha, Respondent.

*October 3*

October *24, 1911.*

*Judgments: Assignment: Principal and agent: Apparent authority to direct application of moneys: Husband and wife.*

*1.*The assignee of a judgment takes it subject to the equities between the parties.

*2.*Where the statute — sec. 2906, Stats. (1898) — provides a mode of assigning judgments, its requirements must be followed in order to secure to the assignee any rights which depend solely on the statute; but such statute is not exclusive and does not prevent the making of an assignment, good at least between the parties thereto, in any other lawful manner, and the equitable interest of such an assignee will be protected.

3. Where a husband had agency powers concerning his wife’s property broad and general enough to include the power to direct a bank in what manner to apply the surplus fund arising from the collection of a judgment assigned to the wife, and the bank, having no notice from the transaction itself or otherwise of any limitation upon this power, made the application as directed, in good faith and in reliance upon the husband’s apparent authority, the wife is bound thereby even though, in giving the direction in question, the husband exceeded his actual authority.

Appeal from a judgment of tlie circuit court for Waukesha county: Mastín L. Lueck, Circuit Judge.

*Affirmed.*

*O. E.*Armin, for the appellant.

For the respondent there was a brief by *Merton, Newbury &*Jacobson, and oral argument by *M. A. J acobson.*

Trainin', J.

F. G-. Cowie, the husband of appellant, owned a claim for $3,250 against the estate of John A. Rice, deceased, which had been duly allowed by the county court and was in effect a judgment of that court. On April 6, 1908, desiring to borrow $2,000, he executed an assignment of this judgment to T. E. Ryhn. Thereafter on the same day Ryan *125assigned the judgment to the respondent bank, and at the same time Gowie executed his note for $2,000 to the respondent, which note recited that the payment thereof was secured by assignment of the judgment, a copy of which was attached and another copy on file in the office of the county judge. Later on the same day Eyan executed and delivered to Gowie an instrument in writing acknowledging the assignment of the said judgment to he used as collateral security for the payment of a certain note for the sum of $2,000, and agreeing, upon payment of the note with interest and any legal charges, he would re-assign and convey to said E. G. Gowie, or such person as Gowie should direct, the said judgment and all benefit under the same, unless the judgment should have been collected, and in" that case he would pay over to Cowie, his heirs or assigns, all of the surplus arising from said judgment after the payment of the said $2,000 and costs. Later ■on the same day Gowie assigned to C. E. Armin all of the surplus and residue arising from said judgment after the payment of this note, and on May 6, 1908, Armin assigned and ■transferred to the appellant, *Mrs.*Gowie, all his right, title, claim, and interest in and to this judgment. At the time last mentioned appellant executed her note to the respondent for $2,000 with other security collateral thereto, and gave about $1,200 of the money received thereon to her husband. On May 29, 1908, the judgment, then amounting to $3,277.08, was paid to the bank by the estate of Mr. Eice. Out of this the hank paid the first note in question, amounting to $2,017.67, and carried the remainder of $1,259.41 in the cashier’s account. On June 18, 1908, there was paid on the note of May 6th, by application thereon of the surplus proceeds of this judgment less $300, $959.41. *Mrs. Gowie*also paid $790.04 on May 19, 1909. If the whole of the surplus proceeds of the judgment aforesaid had been applied on the note of *Mrs. Gome*this note would have been substantially paid. Ueither of the assignments of the judgment was acknowl*126edged as required by statute, sec. 2906, Stats. (1898). Mrs. *Cowie*brought this action of replevin for her note, claiming there should have been applied as of June 18, 1908, or as of May 29, 1908, the whole surplus proceeds of the judgment in question, viz., $1,259.41, which would have paid the note.

Evidence was offered tending to show that at the time of the assignment of the judgment to Ryan the then owner of the judgment, E. G. Cowie, ordered Ryan to pay one Buckley $500 out of the avails of that judgment left after paying the $2,000 note of F. G. Cowie. By the first question of the special verdict the jury found this to be true. There was evidence tending to show that Ryan advanced $300 to Buckley relying upon this order of E. G. Cowie, and also tending, to show that the latter later ratified this payment but forbade further payments to Buckley. Evidence also tended to-show that Cowie authorized the bank on or about June 18, 1908, to transfer the surplus funds arising from the payment of this judgment, $300 to the account of Ryan to reimburse the latter for what he advanced Buckley, and the remainder to be applied on *Mrs. Cowie3s*note of May 6th. By the answer to the second question of the special verdict it was found that *Mrs. Cowie*did not ratify this payment of $300 made by Ryan to Buckley, and by the answer to the third question that she did not direct E. G. Cowie as her agent to direct the defendant bank to transfer $300 of the fund in question toT. E. Ryan. There was evidence to support these two answers of the jury. The bank did on June 18, 1908, transfer $300 of this fund to T. E. Ryan and applied $959.41 on the note of *Mrs. Cowie.*By the fourth question of the special verdict the jury found that E. G. Cowie, as the agent of the appellant, authorized the respondent bank to transfer this $300 to T. E. Ryan. The case turns on this finding, because the fact established by the first question of the special verdict, namely, that Cowie did authorize Ryan on April 6, 1908, to-pay Buckley, is neutralized by the uncontroverted fact that *127later on tbe. same day Eyan executed and delivered to Cowie tbe instrument mentioned, agreeing tbat in case tbe judgment should bave been collected be would pay over to Cowie or assigns all of tbe surplus arising from said judgment after tbe payment of tbe first $2,000 note. Tbe situation as regards tbe bank and E. G. Cowie was therefore on June 18, 1908, as follows:

Tbe appellant, whose interest in tbe judgment originated May 6, 1908, does not claim tbat she personally gave any direction to tbe bank concerning tbe application of tbe moneys realized on this judgment. She offered her husband as a witness in her behalf and be testified to very general agency powers possessed and exercised by him as agent of bis wife. He further testified tbat as agent for bis wife be ordered tbe bank to apply tbe amount realized on tbe judgment in question, over and above what was necessary to pay bis note of $2,000 and interest, on bis wife’s note of $2,000 of date May 6, 1908, and also testified to facts tending to show tbat on tbe last mentioned date tbe bank bad notice of tbe assignment of Armin to tbe appellant. Appellant, claims under this direction and recognizes her husband’s agency so to direct, but other witnesses testified tbat on tbe occasion when tbe bus-band gave direction to tbe bank with reference to this surplus these directions were tbat $300 of tbe surplus should be transferred by tbe bank to Eyan on account of tbe Buckley claim, and tbe remainder on tbe note of the appellant. By tbe fourth question of the verdict it has become a verity tbat F. G. Cowie did, as agent for bis wife, direct tbe bank to so turn over this $300 to tbe account of Eyan. Tbe third question of tbe verdict does not find tbat *Mrs. Cowie*forbade him to do so, but merely tbat she did not direct him so to do. It is tbe case, therefore, at best of an agent exceeding bis actual' authority. It does not appear tbat tbe bank bad any knowledge of tbe contract of April 6, 1908, from Eyan to F. G. Cowie. It bad knowledge tbat tbe latter was tbe judgment *128creditor and that he had assigned the judgment to Ryan by absolute assignment and that Ryan had then assigned it to the bank as collateral security, and we may assume that, as claimed by appellant, the bank also had knowledge that there was a third assignment by E. Gr. Cowie to Armin and by the latter to the appellant. The assignee of a judgment takes subject to the equities between the parties. *Blakesley v. Johnson,*13 Wis. 530; *Fischbeck v.*Mielenz, 119 Wis. 27, 96 N. W. 426.

At common law a judgment was not assignable so as to vest the legal title in the assignee, but such an assignment will operate to vest an equitable interest which the law will protect. 23 Oyc. 1413. Where the statute provides a mode of assigning judgments its requirements must be followed in order to secure to the assignee any rights which depend solely on the statute; but such statute is not regarded as exclusive and does not prevent the party from making an assignment, good at least between the parties thereto, in any other lawful way. To the respondent, therefore, it appeared that Mr. Ryan had some interest in this judgment as well as *Mrs. Cowie.*

This fairly presents a case where the husband, as agent of the wife, had quite a general authority with respect to her separate property or business, including the power to give directions to the bank regarding the application of the surplus money in question. He directed its application in such a way that it was not apparent to the bank that he was paying his own debt therewith or wrongfully converting any of the proceeds, because Ryan had some apparent although not real interest in the judgment. The act was within Oowie’s apparent authority, and the respondent in reliance thereon parted with the $300. The apparent incidental authority of an agent, so far as it affects parties who in good faith without negligence deal with the agent, cannot be limited even by secret instructions from the principal forbidding its exercise. *McDermott v.*Jackson, 97 Wis. 64, 71, 72 N. W. 375; *Kasson*
      *129
      *v. Noltner,*43 Wis. 646; *Young v.*Wright, 4 Wis. 144; *Bouck v. Enos,*61 Wis. 660, 21 N. W. 825; *Lavassar v. Washburne,*50 Wis. 200, 6 N. W. 516.

We conclude that there is evidence to support the fourth finding of the jury, and that a case is presented where E. G. Oowie, the husband, had agency powers concerning his wife’s property broad and general enough to include the power of directing the bank in what manner to apply the surplus fund in question, and hence that his direction to apply the $300 to the account of Mr. Ryan was binding upon her because embraced within the general scope of his agency and because the bant had no notice from the transaction itself or otherwise of any limitation upon this power which would confine it to directing the application of such surplus upon the note of *Mrs.*Oowie, which was not then due and which was otherwise secured. It follows that the judgment must be affirmed.

*By the Court.*— Judgment affirmed.