that he was regarded as the debtor, it was held erroneous for the court to render judgment against the husband, in an action by the seller, on the ground that as the contract made with the wife was void because of coverture, and as the evidence showed that the articles purchased were necessaries suitable to the degree and station in life of the wife, his commonlaw liability arose, and he was chargeable for the same.

The rule that, if the credit is in fact given to the wife alone, the presumption of a contract for payment obligatory upon the husband, express or implied, is repelled, was applied in Shelton v. Pendleton (1847) 18 Conn. 417, in holding that attorneys employed by the wife without the husband's knowledge, consent, or approval, who successfully prosecuted on her behalf a petition for a divorce from him and for custody of the children, could not recover from the husband their reasonable disbursements and fees in the prosecution of that petition. The facts were held to repel all presumption of assent or authority by the husband to the employment of the plaintiffs in this service, and were convincing that the plaintiff looked for payment to the wife alone.

And the rule that, where credit is given to the wife for necessaries furnished to her, the husband is not chargeable, is recognized in Dorsey v. Goodenow (1832) Wright (Ohio) 120, this case also being one where the question was as to the right of the wife's attorney in a divorce proceeding brought by her, to recover his fee from the husband. See also Zent v. Sullivan (1907) 47 Wash. 315, 13 L.R.A. (N.S.) 244, 91 Pac. 1088, 15 Ann. Cas. 19, holding holding that the husband is not individually liable on a contract made by a wife to pay attorneys' fees in a proceeding for divorce against him, which is intended to be her individual obligation.

(The general question as to the liability of the husband for services rendered by an attorney to the wife in a divorce suit is beyond the scope of the present annotation; but is the

subject of the annotation in 25 A.L.R. 354.)

That where goods are supplied to the wife on her credit, or on that of a third person, the husband is not liable, is the rule laid down in Bonney v. Perham (1902) 102 Ill. App. 634, in which, in an action against the husband for wearing apparel supplied to the wife by the plaintiff while the husband and wife were living permanently apart, and she was receiving a considerable allowance from him, it was held that the husband was not liable, for the reason, among others, that it did not appear that the goods were supplied on the credit of the husband the wife having frequently purchased similar goods from the plaintiff, and the charge always being made in her name, the present bill being originally rendered to the wife.

And the fact that groceries were sold on the order of, and credit was extended solely to, the wife, who was living apart from the husband, was held in Menefee v. Chesley, (1896) 98 Iowa, 55, 66 N. W. 1038, to be a reason for denying the husband's liability therefor, it being said that the seller was not entitled to recover from the husband at common law, because it was affirmatively shown that the goods were sold solely on the credit of the wife.

Cases supporting the rule that at common law the husband is not liable even for necessaries furnished to the wife on her sole credit are referred to in Tillman v. Shackleton (1867) 15 Mich. 447, 93 Am. Dec. 198, where, however, the action. was against the wife for furniture supplied to her in conducting a boarding house on her Own account. The court stated that to render the husband liable, even at common law, for such articles, the sale must have been made in some way upon his credit, whereas it appeared to have been made, in this instance, upon the sole credit of the wife; that the furniture did not appear to come within the range of ordinary necessaries, even if this fact could render him liable where credit was not given to him.

And where from the express con

tract made between the seller and the wife, who were the sole parties to the contract, it appeared that the goods were not sold upon the credit of the husband, but upon that of the wife, who had the right so to contract, it was held in H. Leonard & Sons v. Stowe (1911) 166 Mich. 681, 132 N. W. 454, that the husband was not liable, although the goods were used in furnishing the residence occupied by the husband and wife. In this case there was no express contract by which the plaintiff agreed to sell to the wife goods, the title to which was to be retained in the seller until paid for, at which time he agreed to transfer the title thereto to the wife, the latter agreeing to make monthly payments of a specified amount, and it being agreed that if she failed to do so, the contract of sale should be void at the option of the seller, who might take possession of the goods. The court said that it seemed unnecessary to state that, in the face of the written contract, the plaintiff was not permitted to say that the agreement was in fact for a sale upon the credit of the husband; that by the contract nothing was left to implication, and that, assuming that the wife had authority, express or implied, to bind the husband by purchases of goods, she did not in this instance undertake so to bind him; and that, if any essential facts might otherwise be considered as lacking, there was the circumstance that the suit was begun against the wife (the action being against both husband and wife), and that the plaintiff had recovered a judgment against her.

In an action for the purchase price of a watch bought by the defendant's wife from the plaintiff, the court in Johnson v. Briscoe (1904) 104 Mo. App. 493, 79 S. W. 498, after considering the question of the wife's authority to pledge the husband's credit therefor, stated that there was some evidence from which the inference might be drawn that the article was sold on the credit of the wife, and that, of course, if the sale was made on her credit, and not on that of her hus

band, she alone was responsible for the price.

And the law is well settled, said the court in Tuttle v. Hoag (1870) 46 Mo. 38, 2 Am. Rep. 481, that if a tradesman furnishes goods to a wife, and gives credit to her, the husband is not liable, though the wife lives with him and he sees her in possession of the goods. In this case, however, the goods were not apparently necessaries, but were for the separate business of the wife, carried on by her independently and without her husband's consent.

In Hill v. Goodrich (1865) 46 N. H. 41, it was held that the husband was not liable for furniture sold to the wife, and used by them in their dwelling house, owned by the wife, where it appeared that the same was charged directly to her on the seller's books of account, and was sold to her solely upon her credit, she having a separate income used by her for the support of the family, the court saying that, as the furniture was sold to the wife solely upon her credit, the husband was not liable, and that under these circumstances the mere fact that she used it with his knowledge and assent would not tend to show a liability on his part, especially as she had a separate income. And the husband was held not liable, although the furniture came to him on his wife's death through her will.

And the doctrine that the husband is not liable if credit for necessaries is extended solely to the wife is supported also by McConnell v. McConnell (1909) 75 N. H. 385, 74 Atl. 875, where the defendants furnished board and lodging to the wife, with the understanding that they might apply the same upon a mortgage debt owing to her; and it was held that this agreement on the part of the wife was not an undertaking by her for the husband, or in his behalf, within the meaning of a statute, but was binding upon her, because the board was not furnished to her on his credit, and he was not liable therefor.

The doctrine that if the credit is extended solely to the wife the husband

with which to buy necessaries could not recover therefor from the husband, there being no ground for subrogation, since the husband was never liable to the seller of the goods, who, it was said, furnished them not on the husband's credit, but on that of the wife. It seems a misapplication of terms, however, to say that the goods were furnished on credit at all, since they were sold to and were paid for by the wife. This class of cases is not on facts, within the scope of the annotation.

In Maxon v. Scott (1873) 55 N. Y. 247, where it appeared that the wife requested the defendant to board herself and husband, promising that she would pay for such board and would charge her separate estate with the payment, and that the board was furnished by the defendant in reliance upon this promise, the court, in considering the question whether the promise was made by her as a surety of her husband, and was void under the Statute of Frauds, said that this was clearly a contract by the wife as principal, and not as surety; that if he boarded with the defendant with her, under this contract, the credit was given to her and her separate estate, and not to him, as he would not become debtor to the defendant therefor; and that the law would not imply a promise by him to pay for the board, when it was shown that it was furnished at the request of his wife and upon her credit and that of her separate estate.

And Ellenbogen v. Slocum (1910) 66 Misc. 611, 121 N. Y. Supp. 1110, is to the effect that where credit is given solely to the wife for necessaries, under a contract made with her, the seller cannot ignore that contract and shift the liability to the husband. The judgment is modified on other grounds in (1910) 123 N. Y. Supp. 342.

That, where the credit is extended solely to the wife, the husband is not liable, although the articles pur

chased are necessaries, was held also in Green v. Karp (1917) 164 N. Y. Supp. 670; but there were in this case the additional circumstances that a judgment covering this claim had already been obtained by the plaintiff against the wife, and that the husband had furnished the wife money with which to meet this particular bill, and the court said merely that under these circumstances there could be no recovery against the husband.

The rule is, said the court in Griffin v. Banks (1868) 37 N. Y. 621, that where credit is given solely to the wife, upon a sale to her, the husband is not liable, although they live together, and he sees her in possession of the goods thus bought. This statement has been referred to in cases involving a sale of necessaries to the wife, although, in the above case, it does not appear that the purchases were of this character, but rather that the property was acquired by the wife in business carried on by her in her

own name.

And in Ryon v. John Wanamaker (1921) 116 Misc. 91, 190 N. Y. Supp. 250, the court said that the rule of responsibility of the husband for necessaries purchased by the wife was well established; but that it was equally well settled that, where credit is given to the wife solely, the husband is not liable, although they are living together at the time and he sees her in possession of the articles. In this case, although the husband was held not liable, there were other determining features of the case, such as the furnishing by the husband of sufficient necessaries, and the fact that the goods in question could not, apparently, be so classed. The decision is affirmed without opinion in (1922) 202 App. Div. 848, 194 N. Y. Supp. 977,' which is affirmed, without opinion, in (1923) 235 N. Y. 545, 139 N. E. 728.

And in McBride v. Adams (1903) 84 N. Y. Supp. 1060, it was held that the husband was not liable for the value of jewelry sold by the plaintiff to the wife, to whom the credit was originally extended, the wife having paid for the same in part, and the assertion of the defendant's liability

being made only because of the plaintiff's failure, after repeated demands, to collect the balance from her. And the court said that liability could not be imposed upon the defendant's bald promise to remit, when finally apprised of this claim, which, upon the facts, was the debt of another, in the absence of anything which could suggest a consideration for the promise. Whether the articles in question were necessaries was not decided.

The general rule is implied, also, in Smith v. Allen (1869) 1 Lans. (N. Y.) 101, where, in considering the question whether the goods were sold on the credit of the wife's separate estate, so as to render her liable, the court said that goods purchased by the wife upon credit, for family use, are the goods of the husband, and he, and not the wife, is liable to pay for them, unless there is some special agreement between the parties by which they are sold to the wife for her exclusive use, and upon the credit of her separate property, and not upon the credit of her husband.

And where there was evidence tending to show that the goods were supplied to the wife, upon her personal credit, for the maintenance of an equipage which she had hired with her husband's knowledge and consent, the court in Martin v. Oakes (1903) 42 Misc. 201, 85 N. Y. Supp. 337, said that, if this were found to have been the fact, the husband was not liable, although the goods might have been necessaries.

Several other cases involved particularly questions as to the admissibility or the sufficiency of the evidence to show to whom credit was given.

Thus, in Coulter Dry Goods Co. v. Munford (1918) 38 Cal. App. 231, 175 Pac. 900, it was held, in an action for goods sold by the plaintiff to the defendant's wife, that the court properly excluded evidence offered for the plaintiff, to show that the account was opened on the credit of the husband as well as of the wife, where this testimony related to conversations between the plaintiff's general manager and its credit man, and to statements between them, not

made in the presence of the husband or wife, or with their knowledge, about their affairs and financial responsibilities.

And in Smith v. Silliman (1855) 11 How. Pr. (N. Y.) 368, it was held that the evidence showed that the credit was given to the wife, and not to the husband, and that the court properly so found and held the husband not liable; that the seller, having originally given credit to the wife, could not afterwards change the same and hold the husband liable. The case was one in which a merchant sought to hold the husband liable for the value of wearing apparel sold to the wife while they were living together, it being held that even for such articles as were necessary the husband was not liable, although the parties were in humble circumstances and apparently the wife had no separate means, where it appeared that the plaintiff had known the wife at his own store and at another store at which he had formerly clerked, as a paying customer, that, when she finally desired to trade at his store on credit, he made no inquiries regarding her husband, of whom he knew nothing, that he made the charges to her, that the husband was never mentioned in connection with the purchases, but the wife was several times called upon with reference to the bill, and that she made payments thereon, and further sales were made to her. It may be observed that in this case more importance seems to be given than in most cases, to the fact that the goods were charged to the wife, although, perhaps, taking the evidence as a whole, it was sufficient to overcome the presumption that credit for necessaries is given to the husband, though they are furnished to the wife, and to make the question of credit one for the jury.

Also, in Carter v. Howard (1866) 39 Vt. 106, it was held that the husband was not liable for medical services furnished to the wife, since the evidence was sufficient to sustain a finding that the services were rendered by the plaintiff on the credit of the wife, under the belief that he

would be more likely to receive his pay from her than from the defendant, who, during a part of the time during which the services were rendered, was in jail, the wife having separate property and having begun an action for divorce, and the account being charged to her, and not to the husband. The court said that the husband's legal duty to pay for services of a physician rendered upon his credit would not preclude the rendering of services upon the credit of some other person; and if credit was so given, and nothing was subsequently shown to authorize a transfer of the credit, the creditor must stand upon the transaction as it originally occurred; and this, too, irrespective of the relation existing between the person to whom the credit was given, and the one to whom it might have been but was not given.

And it was held in Bentley v. Griffin (1814) 5 Taunt. 356, 128 Eng. Reprint, 727, that the evidence was insufficient to sustain a finding that the credit was given to the husband, so as to render him liable for articles sold by the plaintiffs to the wife, where it appeared that the husband and wife were living together, that the wife had declared in the husband's presence, and in the presence of one of the plaintiffs, that her husband never paid her bills, but she always paid her own, that the goods had been ordered by the wife and debited to her on the plaintiffs books, and were partly paid for by the wife on acceptance by her of bills of exchange, although such bills, it appeared, had been drawn on the husband, and that on one occasion the plaintiff, when one of the bills drawn on the husband had been dishonored, wrote to the wife, urging her to pay the bill, but made no application to the husband, and that the wife attempted to conceal the purchases from the husband.

And although the question was as to the wife's liability, attention is called to Boland v. Skead (1915) Rap. Jud. Quebec 48 C. S. 244, 24 D. L. R. 543, in which the court cansidered that the deciding point whether the responsibility was that 27 A.L.R.-36.

of the husband or the wife, for necessaries furnished to her, was, to whom the credit was given. In this instance, the account was originally opened in the wife's name, and the court said this might be considered as the giving of a credit to the person in whose name the account was opened; and her estate was held liable, although the account was continued in the books sometimes under the name of the wife, and sometimes under that of the husband, who also ordered part of the goods. The court regarded the original account as giving credit to the wife, and a subsequent heading, made merely by the bookkeeper, as not altering the original credit.

In the case of Taylor v. Brittan (Eng.) cited in note in (1823) 1 Car. & P. 16, the report is that the plaintiff supplied the defendant's wife with jewelry to a large amount, the bill being headed with the wife's name, and she, at the time of the purchase, stating that she bought the articles for a friend in the West Indies, who would send the money for them as soon as received; and the court ruled that if credit was given to the wife and the remittances which she expected to obtain, and not to the husband, the action against him could not be maintained.

In Jones v. Gutman (1898) 88 Md. 35, 41 Atl. 792, in an action to recover for goods sold by the plaintiff on the order of the defendant's wife, where it appeared that the plaintiff had written the wife that, in response to her application for an account with him, he would be pleased to comply therewith and awaited her instructions in regard to the same, the court said that the correspondence furnished some evidence that the credit was given to the wife, and that, if the jury found that to be the fact, the plaintiff was not entitled to recover. There was evidence also in this case that, prior to the writing of this letter, the plaintiff had never seen the husband, and had no dealings with him, and that the wife, before her marriage, had made purchases of the plaintiff's store.

And where the plaintiff had knowl