159 P. 538 | Utah | 1916
The plaintiffs, in their complaint, after alleging that they were copartners doing business, etc., alleged as follows:
“That on or about the 24th day of September, 1912, at Salt Lake City, Utah, the defendants became indebted to the plaintiffs in the sum of $115.90 on account of goods, wares and merchandise sold and delivered by the plaintiffs to the defendants, at their request and for which they agreed to pay. That they have not paid the same nor any part thereof, by reason whereof there is now due and justly owing from the defendants the sum of $115.90, together with interest at the legal rate from the 24th day of September, 1912. That payment has been requested.
“Wherefore plaintiffs pray judgment against the defendants for the sum of $115.90, together with interest at the legal rate from the 24th day of September, 1912, and for all costs of suit. ’ ’
The action is based on Comp. Laws 1907, Sec. 1206, to which we shall refer hereafter.
The defendant F. A. Shields alone appeared and filed an answer to the complaint, in which, after denying liability, he set up as an affirmative defense that when the indebtedness was contracted by Mrs. Shields his former wife and codefend-ant, they were not living together as husband and wife; that at said time he had' commenced an action, which was then pending in the district court of Salt Lake County, wherein he prayed for a divorce from his wife and that he was ‘ ‘ shortly thereafter” granted a divorce by said court; that said plaintiff had knowledge of the pendency of said action and that the defendant and his wife did not live- together as a
After a trial to the court findings of fact were made and filed as follows:
‘ ‘ That on September 24, 1912, the plaintiffs sold upon credit to the defendant Mrs. F. A. Shields a lady’s suit at the agreed price of $32, and in like manner did sell to said Mrs. F. A. Shields thereafter at the date's and for the prices-mentioned the following goods: October 16, 1912, waist, $7; October 16, 1912, hose, $1.35; November 29, 1912, fur coat, $64.50; November 29, 1912, hat, $5.25; November 29, 1912, feather, $11.50; December 5, 1912, comb, $3.25; December 5, 1912, vest, $.20; December 5, 1912, hose, $0.35”; April 24, 1913, coat, $22.50.
‘ ‘ That no payments have been made on said account except that said Mrs. F. A. Shields, between the 24th day of September, 1912, and February 5, 1913, paid to the said plaintiffs on said account sums aggregating $32.
‘ ‘ That said goods were sold to said Mrs. F. A. Shields upon her own credit and not upon the credit of the defendant F. A. Shields, and the same were charged on the books of the plaintiffs to said Mrs. F. A. Shields, and the same were none of them necessaries.
“The said defendant F. A. Shields did not know of any such sales until long after the same were made; and from and after the 8th day of September, 1912, the defendant F. A. Shields and the defendant Mrs. F. A. Shields were living separate and apart from each other, and at the time of said separation the said Mrs. F. A. Shields had been and was well provided for by the defendant F. A. Shields.
“The said separation was because of the fault of the defendant Mrs. F. A. Shields.
“The defendant F. A. Shields brought in this court a suit for divorce on the 18th day of September, 1912, against the said defendant Mrs. F. A. Shields, whose proper name is and was Daisy I. Shields, and to the defendant F. A. Shields, in said divorce suit, was granted a divorce on the 10th day of October, 1912.
*274 “Tbe plaintiffs, during tbe year 1910, had sold to the defendants upon account three items of goods aggregating $47, which account had been paid, balanced and closed March 1, 1911, and thereafter had no dealings with the defendant F. A. Shields.
“Reasonable inquiry on the part of plaintiffs at the time of said sales to the defendant Mrs. F. A. Shields would have disclosed to said plaintiffs the said separation and divorce proceedings.
‘ ‘ The plaintiffs did not sell any of the said goods, wares or merchandise, on account of which this suit is brought, to the defendant F. A. Shields; neither did he receive the same nor any benefit thereof. ’ ’
Upon these findings the court entered conclusions of law that the defendant F. A. Shields was not liable, and thereafter entered judgment dismissing the complaint as against him. Plaintiffs appeal.'
While a number of errors are assigned, yet counsel, in his brief, in respect to that, says:
1, 2 “All of the assignments of error relate to the question whether the articles furnished to Mrs. Shields were family expenses- for which the respondent F. A. Shields is liable and we shall argue the assignments as one.”
Counsel, however, insists that the court’s finding that the articles purchased by Mrs. Shields were not “necessaries,” under the statute, is wholly immaterial and that the authorities are to that effect. We think the contention is well founded for the reason that all that is required by the statute is that the things purchased are legitimate or proper family expenses. All the authorities, as we read them, so hold. The finding, although immaterial, nevertheless, did not prejudice the plaintiffs if the other findings are sufficient and the conclusions of law are right. Upon the other questions involved counsel for plaintiffs has cited a large number of cases. The principal question discussed, however, by. counsel for both parties is whether the defendants, at the time the articles were purchased, lived together and thus constituted a family. Section 1206, supra, which must control upon that question, provides:
‘The expenses of the family and the education of the ehil-*275 dren are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately. ”
In Davis v. Ritchey, 55 Iowa 719, 8 N. W. 669, the Supreme Court of Iowa held that a wife could not be held liable under the statute for money borrowed'by her husband, although he borrowed it for the purpose of paying family expenses and used it for that purpose. That seems a somewhat strict construction.
In Featherstone v. Chapin, 93 Ill. App. 223, the court held that the statute
“is not to be construed so as to make the wife liable for services rendered in caring for a drunken husband with whom she is not living at the time.”
In Gilman v. Matthews, 20 Colo. App. 170, 77 Pac. 366, it is said:
“In an action against a wife for wearing apparel purchased and worn by the husband, it is not sufficient to show that they are husband and wife, but it must also be shown that they are living together, so as to constitute a family.”
The judgment was accordingly reversed upon the sole ground that plaintiff had failed to establish those facts.
“In this case it appeared that the appellees had ceased to live together for some months before the purchase, though the appellants had no notice of such separation. Neither had the husband any notice that the wife was buying the goods.”
The court accordingly concluded as follows:
“The Superior Court rightly decided that the appellees were not liable under the statute for family expenses where there was no family.”
In Vose v. Myott, 141 Iowa 506, 120 N. W. 58, 21 L. R. A. (N. S.) 277, it is again held by the Supreme Court of Iowa that:
The “statute does not impose upon the wife the expense of her husband’s board while absent from their home in contemplation of separation.” (Italics ours.)
Plaintiff’s counsel has also cited, and apparently strongly relies on, the decision in Arnold v. Keil, 81 Ill. App. 237. A mere cursory reading of that case, however, will disclose that the decision is in full accord with all those we have referred to above. In the latter case the goods were purchased before the husband left the wife and were all delivered on the very day he in fact did leave. Moreover, it is not absolutely clear that at the time the husband did leave the wife they intended to permanently sever the family relation.
Counsel for plaintiff has severely criticized the decision in Schlesinger v. Keifer, supra, from which we have taken the liberty to quote. It is not necessary to review counsel’s criticism of that case since if his criticisms were given effect it would have to apply to practically all the cases we have quoted from and to others to which we have not deemed it necessary to refer.
Counsel, however, strenuously insists that the statute is remedial, that it was intended for the protection of the merchant and trader as well as for that of the husband and wife, and that if should therefore receive a liberal, construction and application. No doubt the statute is remedial. It is also clear that its purpose is to protect those mentioned by counsel. The statute, however, limits the right of recovery for "the éxpenses of the family. ’ ’ It must therefore be given a fair, sane, and reasonable construction so as not to frustrate its real purpose upon the one hand and to carry' it beyond what it was intended thereby to accomplish upon the other. When the statute refers to the expenses of the family it necessarily presupposes or assumes the existence of a family, and, further, that those who usually comprise a family are in fact sustaining that relation. While it is not practical — nor is it necessary — to determine in advance under what circumstances the family relation might still be deemed to exist, and while in that regard the facts and circumstances of each ease must, to a large extent, be considered in determining the relation, yet
The judgment is affirmed, with costs to the defendant F. A. Shields.