134 N.Y.S. 392 | N.Y. App. Div. | 1912
Lead Opinion
This is an action by a tradesman to recover for goods sold to defendant’s wife. At the close of the whole case the complaint was dismissed. The exceptions raised the question whether the case should not have been submitted to the jury.
At the time of the purchase the defendant and his wife were living together in the city of New York. The defendant was a man of means, enjoying a large income and had been in the habit of making his wife a liberal allowance for her personal uses, and occasionally supplementing the usual allowance by giving her other sums of considerable size.
The evidence presented on behalf of plaintiff would have justified a finding that the goods were of a kind which had theretofore been used by the wife, and were appropriate to the station in life and the wonted style of living of defendant and his wife. It was then open to the husband to show, if he could, that the wife was amply supplied with articles of the same character as those purchased, or that she had been furnished with sufficient money to pay cash therefor. (Wanamaker v. Weaver, 176 N. Y. 78-82.) This, however, is a matter of defense. In our opinion it was for the jury to say whether or not the articles furnished were necessaries in the sense in which that word is used in a case like the present, and if so, whether or not the husband had succeeded in showing the facts relied upon in defense. It was error to decide either of these questions as matter of law.
Another question in the case is whether or not the goods were sold on the faith of the husband’s credit or on that of his wife, and here again, as we consider, the question was one of fact for the jury. While the hill was made out to the wife the plaintiff testified in effect that he trusted her upon the faith of the defendant’s credit, and while plaintiff himself had not previously sold to the wife on credit, it appeared that he had formerly been connected with an establishment from whom the wife had been in the habit of purchasing similar articles on credit, and whose bills had been paid. “If a wife is going to a merchant to trade, with whom she is acquainted and with whom she has been accustomed to trade upon the credit of her husband, she may still continue to do so until the husband gives notice prohibiting the merchant from longer giving credit to her.” (Wanamaker v. Weaver, supra.) We consider
The proof that long after the purchases in question the husband had inserted in a Paris newspaper a notice that he would no longer be responsible for his wife’s bills was properly rejected, and the plaintiff can take nothing by his exception thereto.
We think, however, that the exceptions must be sustained and a new trial ordered, with costs to plaintiff to abide the event, for the error of the court in refusing to submit to the jury the questions of fact above indicated.
Clarke and Miller, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.
Dissenting Opinion
I think this judgment should be affirmed. The complaint alleges that between the 16th of April, 1907, and the 22d of May, 1907, the plaintiff rendered services to the defendant, at his request, in the making up one brown leather coat, one blue and white suit, one blue taffeta coat, one pique suit and one white serge suit, and that the plaintiff then and there furnished the material necessary to the said work and incident thereto upon like request. There is no allegation in the complaint that the goods furnished were clothing for the defendant’s wife or were necessaries furnished to the wife, the cause of action being solely based upon the allegation that the goods in question were furnished to the defendant at his request and for which he either expressly or impliedly promised to pay. Plaintiff proved that he furnished these goods to the defendant’s wife, who was at that time living with him in the city of New York. The evidence shows conclusively that the goods sold and delivered were charged to the wife and it was the wife and not the defendant to whom the plaintiff looked for payment. There is no evidence that the defendant ever knew that his wife had purchased goods of the plaintiff; that he ever recognized her authority to make such purchases by paying her bills on former
I think, therefore, the court was justified in directing a verdict for the defendant and that the judgment should be affirmed.
Laughlin, J., concurred.
Exceptions sustained, new trial ordered, costs to plaintiff to abide event. Order to be settled on notice.