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V.

tain goods alleged to have been sold and delivered by plaintiff to defendant's wife which resulted in a verdict for plaintiff. Sustained.

The facts are stated in the opinion of the court.

Messrs. Powers & Guild, for defend- she was to remain there and have a ant:

home, and receive, for assisting in Defendant's wife having, without

the housework, her board, clothing, his fault and without notice to him, left the home which he provided,

and the sum of $5 per week. Later

she received from the government where necessaries would have been supplied to her, the plaintiff cannot

the regular allotment from her husmaintain an action against him for

band's pay, viz., $15 per month. necessaries furnished her without de- At the end of a week after his defendant'o consent, and the verdict parture, dissatisfied, as she says, should be set aside.

with her treatment, but without noSteinfield v. Girrard, 103 Me. 151, tifying her husband, she left the 68 Atl. 630; Peaks v. Mayhew, 94 Me.

aunt's, and went to her sister's home 571, 48 Atl. 172. The debt for which the plaintiff

in another town to live. The first of seeks to recover having been con

the goods sued for in this action tracted by defendant's wife in her

were purchased by her within a few own name and upon her own credit, days after leaving the home her husdefendant is not liable therefor.

band had provided. Williston, Contr. 270; Schouler, The jury under instructions of the Dom. Rel. 5th ed. $ 70 & note; 21 Cyc. court, to which no exceptions were 1230; Yates v. Lurvey, 65 Me. 221; taken, must have found that the deDolan v. Brooks, 168 Mass. 350, 47 N.

fendant's wife was warranted in E. 408; Caldwell v. Blanchard, 191

leaving the home he had provided Mass. 489, 77 N. E. 1036; Labaree v. Colby, 99 Mass. 559; Tiemeyer

for her during his Turnquist, 85 N. Y. 516, 39 Am. Rep. absence. Otherwise Husband and

wife-liability 674; Stammers v. Macomb, 2 Wend.

she would not take for necessaries 454.

with her the right home.

-wife leaving Mr. 0. L. Keyes for plaintiff,

to pledge his credit, Wilson, J., delivered the opinion

even for necessaries. Steinfeld v. of the court:

Girrard, 103 Me. 151, 68 Atl. 630. An action of assumpsit to recover

The jury must also have found that for certain merchandise, consisting

it was her intent, when she purof wearing apparel and material

chased the goods, to obtain them on therefor, delivered by the plaintiff

his credit, and not on her own. to the defendant's wife. The jury

We have grave doubts as to found for the plaintiff, and the case

whether there is sufficient evidence comes before this court on the de

in favor of the plaintiff on the first fendant's • motion for a new trial

point, on which the verdict may rest. on the usual grounds.

The period during which this liabilThe defendant was married in ity was incurred was one requiring July, 1918, and two weeks there great personal sacrifices, not only by after went with his wife to live with

the husbands who were called to his aunt, with whom he and his or

service, but by the wives who were phaned brother and sister had made

left at home. The defendant's wife, their home prior to his marriage.

when she married, knew his finanThe defendant became of draft

cial condition and his family relaage and subject to the draft of 1918, tions, and that his country might at and by arrangement with the proper any time demand his services, in officials he enlisted and was trans- which case the amount she would ferred to the Students' Army Train- receive from his pay would be small. ing Corps at Tufts College. He left The arrangements for her support home to take up this work Septem- made by the husband when he left ber 13, 1918, leaving his wife at his appear to have been suitable and aunt's, with the understanding that adequate.

wife.

(121 Me. 226, 116 Atl. 451.) The seemingly slight differences' credit. If arising merely from the between her and the aunt, and the presumption by reaslurs and insults which may have

-liability for

son of their mari- goods furnished been more imagined than real, and tal relations, it, of born of a desire on her part to be course, may be overcome. The statfree of the restraint she felt in the utes of this state long since have pernew home and under the new re- mitted her to contract and purchase sponsibilities, were, even if her tes- upon her own credit, and whenever timony be taken at its full value, in

it appears she has done so, she, and sufficient, we think, to justify her not the husband, is liable. 1 Willisleaving the home the husband had ton, Contr. $ 270, p. 520; Hirshprovided, without notifying him.

field v. Waldron, 83 Mich. 116, 47 But even if a verdict founded upon

N. W. 239; Re De Spelder, 181 Mich. the testimony on this branch of the

153, 147 N. W. 589; Hill v. Goodcase were not so manifestly wrong rich, 46 N. H. 41; Caldwell v. as to justify this court in interfer

Blanchard, 191 Mass. 489, 77 N. E. ing, and she must be held to have

1036. taken with her the right to pledge her husband's credit, it is clear from

In the case at bar the plaintiff her testimony and that of the plain wife on his books, though this may

not only charged the goods to the tiff that she did not undertake to ex

not be controlling (Beaudette v. ercise that right when she purchased the goods sued for, but pur

Martin, supra), but he frankly ad

mits he gave the credit to her. The chased them on her own credit, which, under the statutes of this

wife on her part does not pretend state, she had a right to do. Yates

that at the time of purchase she disv. Lurvey, 65 Me. 221; Rev. Stat.

closed, or had any intention of pledgchap. 66, 8 4.

ing, her husband's credit; on the It is true that at common law the

contrary, she admits that she diwife, while living with the husband,

rected them to be charged to herin purchasing of tradesmen in the self, and at the time paid a sum on ordinary course for family use, is

account thereof. There is not the presumed to be acting as the agent slightest evidence that she then conof her husband, and even though the sidered herself the agent of her hustradesmen charged the goods so pur- band, and was purchasing "neceschased to her, it would not render saries" on his account, but, on the her liable, or relieve her husband of contrary, the evi

-liability liability. Emmett v. Norton, 8 Car. dence clearly estab- when credit & P. 506; Furlong v. Hysom, 35 Me. lishes, we think, 332; Baker v. Carter, 83 Me. 132, 23 that she purchased on her own Am. St. Rep. 764, 21 Atl. 834. And credit. even where they are living apart Why she afterward instructed the through some fault of the husband, plaintiff to look to her husband does the presumption still is, in the case

not clearly appear, though from of the purchase on credit of “neces

the evidence it, perhaps, may be saries," --unless it be shown that the

fairly inferred that in the meantime husband has otherwise made rea

some friction had arisen over her sonable provisions for her support, leaving the aunt's and going to live credit and not her own; and even

with her sister, due, in part, at though the goods be charged to her,

least, to alleged attentions paid to unless by ner express direction, still

her by a brother of her sister's hus.

band. the husband would be liable, and she not. Beaudette v. Martin, 113 Me. We think the jury clearly erred in 310, 93 Atl. 758.

finding upon the evidence that the There must, however, be the in- goods sued for were purchased on tent on her part at the time of the the credit of the husband. The mo

. purchase, to pledge the husband's tion must therefore be sustained.

given wife.

ANNOTATION.

Liability of husband for necessaries as affected by question whether or not

they were purchased on his credit.

I. Scope, 554. II. Rule in general, 554. III. Various considerations affecting the

question: a. Wife's separate means, 564. b. Charge to wife, 565. c. Wife's ignorance that seller in

tends to credit her alone, 570. d. Husband's actual knowledge of

or consent to purchase, 570.

III.-continued.

e. Note given by wife for purchase

price, 572. f. Where parties are living sep

arate, 573. VI. Credit given to third party, 575.

V. Statutes, 575. VI. Presumptions, 576. VII. Question to whom credit is given as

one for the jury, 578.

1. Scope. Strictly speaking, only cases involving the question of the husband's liability are in point in the present annotation. There are a few cases, however, referred to, where the action was against the wife, and the court, in discussing the question of her liability, indicates its view also as to the liability of the husband under the circumstances. It is not the aim of the present annotation, however, to include, in general, cases involving merely the question of the liability of the wife.

It should be observed, also, that the annotation is concerned only with the question of the husband's liability for necessaries, and that this question is somewhat different from that of his liability for goods sold to the wife in a separate business carried on by her, although some of the cases of the latter class have not always been distinguished by the courts, and several cases of that kind are cited herein. That the husband is not liable for supplies furnished for carrying on a business by the wife in her own name, if the credit is given exclusively to her, see for instance, Swett v. Penrice (1852) 24 Miss. 416.

11. Rule in general. If one, in selling an article, gives credit for the purchase price exclusively to the person with whom he deals, it seems that he cannot afterwards, apart from the rule as to undisclosed principals, shift this credit to some other person, and hold the latter liable; the rule, it seems, goes even to the extent that one who con

tracts with an agent, having full knowledge of the principal, cannot hold the latter liable if he extends credit exclusively to the agent, notwithstanding the act is within the scope of the agent's authority, and is for the benefit of the principal. And the fact that the parties are husband and wife does not apparently affect this doctrine. The rule appears to be well settled, both at common law and under modern statutes, that if the credit for necessaries furnished to the wife is given exclusively to her, the husband is not ordinarily liable therefor (according to one or two authorities, it is necessary also that both partiesthat is, both the seller and the wife should so understand at the time of the purchase).

Alabama,-Pearson v. Darrington (1858) 32 Ala. 227; O'Connor v. Chamberlain (1877) 59 Ala. 431; Gayle v. Marshall (1881) 70 Ala. 522; Gafford v. Dunham (1895) 111 Ala. 551, 20 So. 346.

Connecticut.-Shelton v. Pendleton (1847) 18 Conn. 417; Taylor V. Shelton (1861) 30 Conn. 122.

Delaware.-Fredd v. Eves (1846) 4 Harr. 385; Black v. Clements (1900) 2 Penn. 499, 47 Atl. 617.

Georgia.--Connerat V. Goldsmith (1849) 6 Ga. 14; Mitchell v. Treanor (1852) 11 Ga. 324, 56 Am. Dec. 421; Goodson v. Powell (1911) 9 Ga. App. 497, 71 S. E. 765; Georgia Grocery Co. v. Brunson (1919) 24 Ga. App. 484, 101 S. E. 130.

Illinois.-Bonney v. Perham (1902) 102 Ill. App. 634.

Iowa.-Menefee v. Chesley (1896) 98 Iowa, 55, 66 N. W. 1038.

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.

Maine.—BROWN V. DUREPO (reported calfe v. Shaw (1811) 3 Campb. 22, 13 herewith) ante, 551.

Revised Rep. 740; Holt V. Brien Maryland.—Jones v. Gutman (1898) (1821) 4 Barn, & Ald. 252, 106 Eng. 88 Md. 355, 41 Atl. 792.

Reprint, 930; Harvey v. Norton (1840) Michigan. H. Leonard & Sons v. 4 Jur. 42; Bentley v. Griffin (1814) 5 Stowe (1911) 166 Mich. 681, 132 N. W. Taunt. 356, 128 Eng. Reprint, 727; 454. See also Bolthouse v. DeSpelder Jewsbury v. Newbold (1857) 26 L. J.

. (1914) 181 Mich. 153, 147 N. W. 589. Exch. N. S. 247.

Missouri. Johnson V. Briscoe Canada. Finch v. Minnie (1914) (1904) 104 Mo. App. 493, 79 S. W. 498. 20 B. C. 331. See also Boland v. Skead See also Tuttle v. Hoag (1870) 46 Mo. (1915) Rap. Jud. Quebec 48 C. S. 244, 38, 2 Am. Rep. 481.

24 D. L. R. 543. New Hampshire.-Hill v. Goodrich The rule is, said the court in Crosby (1865) 46 N. H. 41; McConnell v. Mc- v. A. Harris & Co. (1921) Tex. Civ. Connell (1909) 75 N. H. 385, 74 Atl. App. —, 234 S. W. 127, that if one sells 875. See also Ott v. Hentall (1900) necessaries to a married woman, and 70 N. H. 231, 51 L.R.A. 226, 47 Atl. 80. extends credit to her personally, or

New York.-Maxon v. Scott (1873) upon the credit of her individual es55 N. Y. 247; Smith Silliman tate, the husband will not be liable. (1855) 11 How. Pr. 368; Ehrich v. But the Texas courts of civil appeals Bucki (1894) 7 Misc. 118, 27 N. Y. do not appear to be altogether in Supp. 247; Byrnes v. Rayner (1895) harmony on the question. The doc84 Hun, 199, 32 N. Y. Supp. 542; Mar- trine of the Crosby Case, supra, was tin v. Oakes (1903) 42 Misc. 201, 85 approved and followed in Colonna v. N. Y. Supp. 387; Pickhardt v. Pratt Kruger (1922) Tex. Civ. App. (1907) 55 Misc. 231, 105 N. Y. Supp. • 246 S. W. 707. But in McKee v. Popu236; Wilder v. Brokaw (1910) 141 App. lar Dry Goods Co. (1922) Tex. Civ. Div. 811, 126 N. Y. Supp. 932; Ellen- ' App. - 240 S. W. 567, the court, after bogen v. Slocum (1910) 66 Misc. 611, quoting from the opinion in the 121 N. Y. Supp. 1110, modified on other Crosby Case, approved a modified grounds in (1910) 123 N. Y. Supp. 342; view, as laid down by a law writer in Wl'ilson v. Thomass (1911) 127 N. Y. that state, that it is only under the Supp. 474; Green v. Karp (1917) 164 most extraordinary circumstances that N. Y. Supp. 670; Wickstrom v. Peck a purchase by a wife is not binding (1917) 179 App. Div. 855, 167 N. Y. upon the husband; that she should do Supp. 408; Ryon v. John Wanamaker or say something clearly indicating an (1921) 116 Misc. 91, 190 N. Y. Supp. intention on her part to be bound for 250, affirmed without opinion in (1922) their payment and cause the seller to 202 App. Div. 848, 194 N. Y. Supp. look to her therefor. The court stated 977, which is affirmed without opinion further: “We mean to hold by the in (1923) 235 N. Y. 545, 139 N. E.

above simply that where the evidence 728. See also Arnold v. Allen (1880)

shows only that the wife purchased 9 Daly, 198. Ohio. Dorsey v. Goodenow (1832)

the goods and the credit was given to

her on the books of the seller, and Wright, 120. South Carolina.-Moses v. Fogartie

nothing occurred further at the time (1834) 20 S. C. L. (2 Hill) 335.

to indicate an intention on the part of Texas. Crosby v. A. Harris & Co.

the wife or the seller of the goods that (1921) - Tex. Civ. App. - 234 S. W.

,

the seller was to look solely to the wife 127; Colonna v. Kruger (1922) Tex. for payment, such facts would not be Civ. App. 246 S. W. 707. But see

sufficient to release the husband from McKee v. Popular Dry Goods Co. infra. liability for necessaries furnished the

Vermont.-Carter v. Howard (1866) wife. That the credit was extended to 39 Vt. 106. See also Bugbee v. Blood the wife, and not to the husband, will (1875) 48 Vt. 497.

not, we think, relieve him from liabilEngland. - Taylor v. Brittan, cited ity for necessaries. Its only effect in note in (1823) 1 Car. & P. 16; Met- would be a possible charging of the

a

wife according to the facts, not a re- in an earlier appeal of this case in lease of the husband."

(1914) 163 App. Div. 608, 148 N. Y. The reasons for the general rule Supp. 596, that, under certain circumabove indicated are brought out in stances, the goods in question were Wickstrom v. Peck (1917) 179 App. necessaries, "and the husband was liDiv. 855, 167 N. Y. Supp. 408, an able to whosoever furnished them to action for articles furnished to the the wife, no matter to whom the credit defendant's wife by the plaintiff, was originally extended.” holding erroneous an instruction that, It was said also in O'Connor v. if the articles were necessaries, the Chamberlain (1877) 59 Ala. 431, that husband was liable to the party fur- although the wife is living with the nishing them to the wife, “no matter husband, if on her own credit, or to to whom the credit was originally ex- the express exclusion of the credit of tended." The court refused to charge the husband, she obtains necessaries, that, where credit was given only to the husband is not liable. And it was the wife upon a sale to her, the hus- held in this case that the husband was band was not liable, it appearing that not liable at common law, where the they lived together, and that he saw credit was extended alone to the wife, her in possession of the goods. It upon the faith of her separate estate, was said: “This brings us to the although the result was that there second and real question in the case could be no recovery by the seller whether, in an action at law, a mar- from such separate estate, since a ried man can be held liable to a statutory element, viz., the liability tradesman for necessaries furnished of the husband, was lacking, in view the wife, irrespective of whether of the fact that the statute creating credit was extended to her exclusively the separate estate of married or not. There can be, no doubt, as it woman declared a liability upon it for seems to me, that such question must articles of comfort and support of the be answered in the negative, both up- household suitable to the degree and on reason and upon an unbroken line condition in life of the family, "and of authorities. The theory of permit- for which the husband would be reting the tradesman to allege that the sponsible at common law." contract was the husband's, and, the And it was said in Gafford v. Dunsale made to the husband, is the im- ham (1895) 111 Ala. 551, 20 So. 346, plied agency of the wife growing out that the common-law liability of the of the marital relation, which relation husband for necessaries furnished to imposes upon the husband the legal the wife has always rested upon the duty to furnish his wife with neces- assumption that credit was given to saries. . Now, then, it must be the husband, and not to the wife, and perfectly clear that a tradesman who that the purchase was made with his supplies goods to a wife exclusively implied consent; that in no case did upon her credit deals with her as a this liability arise where the facts principal, and not as an agent. In the showed affirmatively that credit was latter case, the contract is with the given to the wife, and the charge husband; in the former, it is with the made to her, and not to her husband, wife, who has the same right to con- and that the goods were not sold upon tract with third persons on her own his implied consent that they were to individual responsibility as has an be charged to him. And in this case, unmarried woman.

Whoever where the evidence showed that the deals as a principal is liable as such, articles were sold to, and upon the and where one contracts as principal, credit of, the wife, the contract for no question can arise as to the liabil- their purchase being made by her ity of another on the theory of agency. only, and all payments which had been The authorities are all to this effect." credited upon the account having been The above decision serves to clarify made by her, with the husband's name or correct any erroneous view which not appearing upon the books of acmight be obtained from the statement count, and no pretense being made

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