Page, J.,
delivered the opinion of the Court.
This suit was brought to recover money for goods sold by the appellee to the appellant on the order of the latter’s wife. The account filed with the narr. embraces wearing apparel and household articles. Whether they were such as were suitable and proper for one in her station in life, was left by the Court to the decision of the jury. The appellant, Reuben Jones was married in 1895. He was then about seventy-one years of age, and his bride was thirty-one. His family consisted, prior to his marriage, of himself and three daughters, the children of a former marriage. The three daughters all assisted in the support of the family by their labor. One of them attended to the housekeeping at home. Another was employed in the post-office, and the remaining daughter taught a school. The appellant himself labored every day, digging and hauling sand from his own sand-bank, and he wore the “ plainest of clothes.” From the proceeds of his rentals and by dint of industry, his income was about twelve hundred dollars a year. The daughters, who were sworn as witnesses and testified, state that the family kept an account with Nathan Gutman and bought all their clothes of him, amounting in cost for each of them, from fifty to seventy-five dollars annually; they say the family “ lived plainly and dressed plainly.” Sometime after marriage, the appellant gave his wife $1,000, to do with as she pleased, and he also made over to her a house and lot that rented for $25 per month, the understanding between them being he was to draw the rent and apply it to household expenses. Mrs. Jones, however, was permitted by him to receive the rents of this property notwithstanding the *362agreement, and she also received the rents from all the remainder of his real estate. He states that “ if he wanted any of the money he asked her for some and she gave it to him, and kept the balance, and used it for anything, for household affairs.” He also told her that if she needed anything she could go to Nathan Gutman’s store and get it on his credit, a privilege she seems to have availed herself of, on at least one occasion. There is no evidence that she at any time was ever in want of anything, further than a general statement made in a conversation with him of which she testifies, to the effect, that she told him she “ needed things for the house.” As to whether in point of fact such things were needed, there is testimony tending to show that the house was properly supplied, and her own evidence does not enlighten us on the point, further than to show that what she 'objected to was not the need of household articles, but the quality — for she states that “ the blankets in the defendant’s house were nothing but horse blankets, old red donkey blankets.” He on the other hand testifies that she “ never applied to him for wearing apparel to his knowledge and been refused ... he had never noticed, nor had called to his attention any deficiency in her wardrobe.” She, before her marriage, however, had dealt with Joel Gutman & Co., the appellees, and afterwards desired to continue purchasing what she wanted from that store. She told her husband she was going to Mr. Gutman’s, and she went to Joel Gut-man’s. There is no evidence, hpwever, that the appellant, knew or had reason to believe that he understood she intended to-open a bill on his credit with Joel Gut-man & Co. He testifies that he had no knowledge of her dealings there, or of her making a bill with them, and that he had a bill at Nathan Gutman’s, and “ didn’t want a bill at the two places,” and that he didn’t “ know anything about this place ” (meaning Joel Gutman & Co.). In January, she did go to Joel Gutman & Co. to get credit and in February she received the following letter from them, viz., “ In response to your application for;an account with us, we will be pleased to comply *363therewith, and await your instructions in regard to the same.” The appellees prior to the writing of this letter, never saw the appellant, had never had any dealings with him, and knew nothing of him personally, except as to his financial condition, information obtained from business houses and the bureau of information. On the 16th of March a bill for $153.29 was sent to the appellant; no reply was received; and more goods were furnished the wife. On the 5th of May a second bill including all the items sold, wTas mailed to the appellant. There is evidence going to show that he never received the first bill. On May the 27th, the counsel for appellant wrote to the appellees as follows: “ Mr. Jones of Catonsville, this morning handed to me your bill against him, dated May 5th, 1897, the amount thereof being $182.56. The first item of the bill is ‘ to bill rendered $153.29.’ Mr. Jones has never received a bill from you before, and knows nothing about the items comprising either the $153.29 or the subsequent items. Please, therefore, send me at once a full itemized account against Mr. Jones, as it appears on your books. I hereby give you notice on behalf of Mr. Jones not to give his wife, Columbia Jones, credit for anything. As far as your present bill is concerned, when I have received the items I will advise you just what Mr. Jones will do in the premises.” There was some proof going to show, that the appellant saw his wife wearing the goods and never objected, but on this point the evidence is conflicting, and we do not deem it necessary to state it in detail.
Upon this state of the proof, the Court granted the first prayer of the appellees to the effect that if the jury find that the goods were sold and delivered to the wife of the appellant, and that the said goods -were proper and suitable for one in the station in life she at the time occupied, and were sold on credit of the defendant, then the appellant is responsible to the appellees for the same, “ except such goods as were bought for Mrs. Addison’s child ” and “ the verdict must be for the appellees ”... “ even though they believe the defendant did give his *364wife one thousand dollars and conveyed to her real estate worth $2,500 or more, . . . but the jury may consider her possession of such property in determining- the question of agency.”
This instruction seems to embody two opposite and conflicting theories of the law applicable to the facts of the case. The hypothesis of the first part is that the responsibility of the husband will be fixed, if the jury find that the- goods were suitable and proper, etc. And also that the goods were sold on the credit of the husband. This is based upon the theory, that upon the finding of these two facts, the agency of the wife to contract the bill must follow as a matter of law. The latter part of the prayer, however, seems to rest upon the idea that the question of her agency was a matter of fact, in considering which the jury were at liberty to take into account the fact of her possession of the property that her husband had given her. But apart from this, we do not think'the prayer properly presented the case to the jury. The leading question in the case, was whether the wife under all the circumstances had a legal power to bind her husband. This must depend, not upon the bare fact of marriage or of cohabitation, but upon his authority.or assent either expressed or implied. If it be expressed, her power, as in all other cases of agency, must be measured by the terms employed in conferring it. If it be implied, its extent must be gathered from all the circumstances of the case. For instance the husband is bound to provide his wife with such necessaries as in her situation in life are suitable and proper, and if he fail in the performance of this duty, she may contract debts for them, and it will be presumed as matter of law that she had power to do so. 1 Black. Com. 443. In all such cases, a presumption conclusively arises, whether the parties live together or not. ' If the parties live together and it be not shown that the husband has failed to provide her with a suitable maintenance and support, the presumption of her authority is one of fact to be finally determined upon all the circumstances of the case. The husband can then rebut the presumption that arises *365from the fact of cohabitation by showing that the purchase was made without his authority, real or apparent, and without his subsequent assent. “ In all cases,” said Bovill, C. J., in Phillipson v. Hayter, L. R. 6 C. P. 41, in which it is sought to make the husband responsible for goods supplied to the order of his wife, the question has turned upon her authority to bind him by her contract, and that authority must be proved in all cases.” Freestone v. Butcher, 9 C. & P. 643; Walthman v. Wakefield, 1 Camp. 120; 2 Roper on Hus. & Wife 111; Schouler on Dom. Rel. secs. 63-70; Renaux v. Teakle, 20 E. L. & Eq. 346, in which Pollock, C. J., said, “ The apparent result of the authorities is that if a man trusts the wife, he must take his chance.” There is nothing in what has been just stated, in conflict with the rule, the principle of which is applied in all cases of agency, that a husband cannot deny that his wife has such authority as she has been held out by him to have, so that a person acting upon such appearances and in the belief of her agency, has furnished her with goods on the credit of her husband. In such a case, upon the broad principles of agency, the husband cannot deny his liability. The whole subject has been so exhaustively and satisfactorily discussed in two English cases, that we content ourselves with quoting liberally from them. In Jolly v. Rees, 15 C. B. N. S. 628, after laying down the law as we have stated it, Erxe, C. J., proceeds to assign some reasons. He says, it is a solecism in reasoning, to say that she derives her authority from his will, and at the same time to say that the relation of the wife creates the authority against his will, by a presumptio juris et de jure from marriage. . . . The husband sustains the liability for all debts; he should therefore have the power to regulate the expenditure for which he is responsible by his own discretion according to his own means. But if the wife taking up goods from a tradesman can make her husband’s liability depend on the estimate by a jury of his estate and degree, the law would practically compel him to regulate his expenses by a standard to be set up by a jury.” This case a few years later was reviewed and the *366principles affirmed in the House of Lords, in the case of Debenham v. Melton, 6 App. Cas. 24. The goods sold the wife in this case were admitted to be necessaries suitable to her condition; she had been allowed an allowance of £52 per annum for herself and children; and her husband had forbidden her to exceed that allowance. In the case at bar the husband had given the wife a thousand dollars to do with as she pleased, had allowed her to receive all the rents from his property, and placed at her disposal an unrestricted credit at the store of Nathan Gutman. In the case last cited it was held that the question “ whether the wife had authority to pledge the husband’s credit, is to be treated as one of fact, upon the circumstances of each particular case,” and that marriage could not imply by law, an agency on her part to bind him or pledge his credit, except in the case of a necessity which might arise when the husband has deserted her or compelled her to live apart from him without properly providing for her, “ but not when they are living together and she is properly maintained; because then in that state there are no circumstances, no prima facie evidence, that the husband is neglecting to discharge his necessary duty or that there is any necessary occasion for the wife to run him into debt, for the purpose of keeping herself alive or supplying herself with lodging and clothing.” The Chancellor also said, that if the husband does acts or habitually consents to acts “ which confer upon her an apparent authority to pledge his credit, upon the general principles of the law of agency, he would be bound as between himself and the person relying upon it, notwithstanding any private arrangement between himself and his wife; but if he had done none of these acts, or submitted to nothing- to justify the assumption that she 'was acting by his authority, whether she was his agent must depend as a matter of fact upon all the circumstances of the case.”
The cases having some bearing upon this subject are too numerous for us to attempt to review here. There is much apparent conflict among them, though many will be found to agree if regard be paid to the special *367circumstances of each case. Many of them can be found collected in 2nd Smith’s Leading Cases, part I. See notes to the cases of Manby v. Scott, and Montague v. Benedict, Ibid. 406-483. We are of opinion, however, that the principles laid down in the two leading cases cited are supported by the weight of authority and reason. Turning again to the first prayer of the plaintiffs it is clear that it entirely ignores the question of the agency of the wife. Upon the facts stated in it being found it assumes that the authority of the wife to bind her husband was established as matter of law. This was error. There should have been submitted to the jury the question of the agency vel non of the wife, to be determined by them as a matter of fact from all the circumstances of the case.
There was no error in allowing the plaintiff’s second prayer. The theory of the prayer is that if the goods were sold on his credit, with his authority, knowledge and consent, he should be held responsible. The special objection was properly overruled.
The plaintiffs’ fifth prayer was erroneous, in that it assumes that the defendant had failed to show that the gifts of the husband were intended as an allowance to the wife for the purchase of wearing apparel or household supplies. There was some testimony on that point. Mr. Jones testified that the money was given to her to “ use as she pleased,” and that she received the rents and used them partly “ for household affairs.”
The defendant submitted eleven prayers, of which the 1st, 2nd, 3rd, 7th, 8th and nth were rejected. 'His third prayer should have been granted. The first was defective in that it fails to inform the jury as to the effect of the plaintiff’s subsequent conduct tending to show acquiescence. If the defendant after he became aware of her purchase approved either directly or indirectly of her act, he would be bound. There was some evidence in the case on that point, and whether there was subsequent approval on his part should have been submitted to the jury in connection with the other facts set out in the prayer. The second instruction asked for is open *368to the same objection, and also to the additional objection that in considering the question of her agency the jury are restricted to the separate allowance and the credit accorded to her at Nathan Gutman’s. Her agency is a matter to be settled from a consideration of all the circumstances and is not inferable as matter of law from any one. The seventh prayer was proper and should have been granted. The correspondence furnished some evidence, that the credit was given to the wife, and if the jury found that fact the plaintiff was not entitled to recover. Weisker v. Lowenthal, 31 Md. 418" court="Md." date_filed="1869-12-06" href="https://app.midpage.ai/document/moore-v-schultz-ex-rel-schultz-7892881?utm_source=webapp" opinion_id="7892881">31 Md. 418. The eighth prayer should have been granted. Phillipson v. Hayter (supra),and other cases already cited. For reasons already stated in connection with other prayers, the eleventh was properly rejected.
(Decided November 16th, 1898.)
There was no error in the ruling on the first exception. It follows from what we have said, that the judgment must be reversed.
Judgment reversed and new trial awarded.