146 P. 796 | Or. | 1915
Opinion by
It is contended that, without having called as witnesses any of the persons who made the original memoranda, errors were committed in receiving in evidence, over objection and exception, original sale slips, showing goods, wares and merchandise alleged to have been sold and delivered by the plaintiff to the defendants, as stated in the complaint. From an examination of these slips, it appears that the persons making sales, who are indicated by specified numbers, made pencil memoranda showing the articles sold, the value of each, their total worth, the name of the purchaser, whether upon credit or otherwise, together with other data, and that a carbon copy thereof was delivered to the purchaser, while the original was retained, and an entry thereof made in the books. W. E. Kiernan testified that he was in charge of the plaintiff’s credit department; that he had general supervision of the books of his employer, but was not personally in charge thereof. He identified the memoranda exhibited to him as involved herein, saying: ‘ ‘ These are the original charge checks of this account.” “They were taken from the original files. ’ ’ Eefering to the goods, wares and merchandise noted on the charge checks, and alluding to the defendant’s wife, the witness said: “I know they were delivered to her because Mrs. Mitlehner told me herself.” He further testified that a statement of the
With regard to an alleged visit to the plaintiff’s department store in September, 1910, the defendant Albert M. Mitlehner testified as follows:
“I went up to Julius Meier’s office, and I saw Mr. Beckman. I had known him for quite a while. He is Julius Meier’s secretary. I wanted to know was Julius Meier in, and he said he was not in just now. And I said, ‘Well, I come down to see whether he is extending any more credit to my wife’; and he said, ‘No, I don’t think they are, because I have already told bim like that.’ He had already told Julius Meier toi discontinue giving her credit, because she was getting so much. And he went to the credit department with me and told my name, and I wanted to know how much my wife owed Meier & Frank.
“Q. What was his name?
“A. I don’t know. He brought a book, and it was $320 or $325, in that neighborhood, and I said: ‘I can’t afford to pay any more. You better not let her have anymore. She owes all over [Portland], and I can’t afford it very well. ’ Then I left. ’ ’
“Q. How did you know Mr. Beckman was Mr. Meier’s secretary?
“A. That is what he told me.”
This witness further testified that he was married in January, 1909, and finally left his wife June 2, 1913. In answer to the question as to whether or not he was living with her in September, 1910, when he asserts that he notified Mr. Beckman not to extend to her any more credit on his account, he said:
“I don’t remember whether I was living with her or not. I left so many times. We separated so many times. I could not tell whether I was living with her at that time or not.
“Q. You knew that Meier & Frank was supplying her with goods?
“A. I thought she paid with the money she received from me.”
Mrs. Mitlehner testified that her husband was informed she had an account at the plaintiff’s store after September, 1910, and knew bills therefore were received monthly by her; that she notified him of the amount thereof, and he gave her money with which to pay such obligations.
Based on this testimony, the court instructed the jury as follows:
“Although a husband supplies his wife with articles necessary to her station in life, he may render himself liable for articles purchased upon his credit, if he clothes her with an ostensible agency by an apparent authority to contract for goods for his credit by paying such bills previously incurred.”
The statute regulating liability for household outlays reads:
“The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately”: Section 7039, L. O. L.
In Devendorf v. Emerson, 66 Iowa, 698 (24 N. W. 515), family supplies were sold and delivered to the wife of the defendant against his written protest, and it was held that, as he had no account with the plaintiff, he was not liable to them for the value of the merchandise so sold. That case proceeds upon the theory that the husband, as the head of the family, had the undoubted right to determine from what merchant the family supplies should be secured, and not that by giving a written notice could he prevent his wife from procuring sustenance. There is much force in the dissenting opinion of Mr. Justice Adams in that case, wherein he says:
‘ ‘ The plaintiff furnished goods which were consumed in the defendant’s family as family supplies, and if the defendant had the benefit of them, I think he ought to pay for them. He might, of course, forbid merchants to furnish family supplies (not strictly necessaries) on credit, and in cases where he should do so he would be justified in returning the goods and repudiating the purchase. But, where the goods are retained and consumed in his family, I think that he becomes liable to pay for them by implied contract arising under the statute, if not at common law. ’ ’
“If notice not to extend credit is relied upon as a defense, Mr. Mitlehner must prove that he gave actual notice to the plaintiff, or its officers, not to extend any further credit to his wife. Notice to someone who is not in authority, and of which the plaintiff has no actual notice, is insufficient to exonerate Mr. Mitlehner from his liability. The burden of proof is upon Mr. Mitlehner. ’ ’
In 21 Am. & Eng. Ency. Law (2 ed.), 589, it is said:
“The burden of proving notice rests upon the party asserting its existence. ’ ’
A principal is chargeable with notice of every fact coming to the knowledge of his agent when the information obtained by the latter is received in connection with the particular business in which the agent is employed: Wade, Notice, §672. This author at section
“For whether the agent be one exercising general or special authority, it is quite certain that his agency must have some direct connection with the matter, with reference to which notice is given. ’ ’
No evidence of Mr. Beckman’s authority having been received, except the assertion imputed to him that he was secretary to the plaintiff’s manager, such proof was inadequate to establish agency by means of which notice could be charged to the principal: Connel v. McLoughlin, 28 Or. 230 (42 Pac. 218); North Pacific Lbr. Co. v. Willamette Mill Co., 29 Or. 219 (44 Pac. 286); Wicktorwitz v. Farmers’ Ins. Co., 31 Or. 569 (51 Pac. 75.)
No error was committed in giving the instruction challenged.
“Even though actual notice may have been given, yet, if" you find that, subsequent to said notice, Mr. Mitlehner knew of the purchases made by his wife, against his will, and paid for same, you may find from such facts that Mr. Mitlehner ratified the purchases, and is liable therefor. Ratification may be presumed from his subsequent conduct, as, for instance, acquiescence and assent, or failure to complain.”
In view of the testimony to which reference has been made, the jury might reasonably have inferred that after Mr. Mitlehner returned to his home, and the family difficulty had been temporarily settled, he, with full knowledge of the sales of the goods by the plaintiff to his wife, furnished the money with which to pay the bills therefor, thereby ratiying and becoming liable for the debts which she thus incurred: Hahn v. Guard-
The plaintiff had against the defendants but one account, which extended from April 25, 1911, to May 22, 1913, and amounted to $823.26. By applying the credits of $53.71 and $39.91 with previous payments, a settlement was assumed as of March 27,1913. Taking this date as the commencement of a new account, the
It follows from these considerations that the judgment should be affirmed; and it is so ordered.
Affirmed. Rehearing Denied.