167 A. 373 | Pa. Super. Ct. | 1933
Argued April 25, 1933. This is an action of assumpsit brought by the plaintiff against the defendants, husband and wife, to recover the price of certain articles of merchandise bought from the plaintiff between the dates of July 20, 1928 and February 1, 1929.
The defendant wife testified that the goods were *489 purchased by her and that either her husband or her children were with her when she made the purchases, but claims that being a married woman living with her husband, her husband was personally liable for the necessities. She also admitted the execution of an order for a credit account to the plaintiff.
The case was tried before the court without a jury and the trial judge rendered judgment for the plaintiff and against the husband in the sum of $116.90, but as to the wife, rendered judgment in her favor. Plaintiff, then, in accordance with the practice in the county court of Allegheny County moved to open the judgment rendered in the wife's favor and to enter judgment against both defendants. This motion was denied by a brief order of the trial judge but by reason of his death the record discloses no reason for his order discharging the rule, from which order this appeal is taken.
The goods and merchandise were sold to the defendants on open account and the plaintiff proved that the defendant wife had undertaken in writing to be personally liable. The receipt of the goods, the fairness of the prices and that they were necessaries, were admitted.
In the case of Clothier v. Wolff,
A wife purchasing necessaries for her family is presumably acting as her husband's agent but that presumption is overcome when she specifically contracts in her own name and the credit is given to her: Strawbridge and Clothier v. Schecter,
In the case at hand, the plaintiff established that the defendant wife had, by separate agreement, agreed to pay for the goods that were furnished to her. Under these circumstances, the court should have directed judgment in favor of the plaintiff and against both husband and wife for the goods furnished.
The judgment is reversed and judgment is herewith directed to be entered in favor of the plaintiff and against the defendants, Louis J. Kamons and Mrs. Louis J. Kamons, his wife.