Roll v. Davison

165 Pa. 392 | Pa. | 1895

Opinion bt

Me. Justice Mitchell,

The husband is primarily liable for necessaries although they were contracted for by tbe wife on the credit of her own separate estate, Berger v. Clark, 79 Pa. 340, and it was proper therefore to join him with her in the first action. The reasons for the reversal as to the wife by the Court of Common Pleas No. 2 do not appear, but as it was upon depositions on a certiorari it was clearly erroneous. But even if regular it would not prevent a second action. There was no judgment for the wife on the merits of the case, which would be conclusive.

Suit against the husband alone for necessaries has usually been held conclusive against the liability of the wife, because it is an averment or admission of record that the goods were sold on his credit and not on hers. No such conclusion follows in the present case because plaintiff brought his first action in proper form to charge both. The restriction of his recovery to the husband alone was no fault of his, but the action of the court in invitum. He could not join the husband in the second suit because as to the husband the judgment in the first suit was a bar. But as to the wife it was not, and the present action was therefore from the necessity of the case brought against her alone. The jury have found that the goods were sold to her on her separate credit. It was error to enter judgment in her favor against this finding.

Judgment reversed, and judgment directed to be entered for ■plaintiff on the verdict.