179 A.D. 855 | N.Y. App. Div. | 1917
This is' an action at law brought by a tradeswoman against a married man for alleged necessaries furnished to the wife during coverture. The defense was in part, (1) that the merchandise was sold to the defendant’s wife exclusively upon her credit; and (2) that the defendant had furnished his wife with an allowance sufficient to pay for all necessaries.
The defendant contends that the court in effect charged the jury that the defendant was liable, if the articles sold were necessaries, irrespective of whether they were sold exclusively on the credit of the wife and that this was manifest error. Let us see first whether the court did lay down such a rule. The court said: “ Whether or not the credit was given exclusively to the wife is not to be determined as a question of law, but is to be submitted as a question of fact to the jury here. I so charge you.” Obviously, that laid down no-rule for the guidance of the jury, for no instruction was contained in that statement, or given in connection with it, as to the effect of the jury’s finding that credit was given exclusively to the wife. This was followed by the direct charge: “ If they were necessaries, within the legal acceptation of that term, then the husband was liable to whomsoever furnished such necessaries to the wife, no matter to whom the credit was originally extended.” No other instruction on the question of credit was given until the defendant’s counsel pressed upon the court requests to charge. The court was asked to charge: “ That the burden of proof is upon the plaintiff to prove that she gave credit to the defendant for the goods in question.” This was refused. The defendant excepted. This request, it will be observed, had to do with the burden of proof, and conveyed no further instruction to
This brings us to the second and real question in the case, whether in an action at law a married man can be held liable to a tradesman for necessaries furnished the wife irrespective of whether credit was extended to her exclusively or not. There can be no doubt, as it seems to me, that such question must be answered in the negative, both upon reason and upon an unbroken line of authorities. The theory of permitting the tradesman to allege that the contract was the husband’s and the sale made to the husband is the implied agency of the wife growing out of the marital relation, which relation imposes upon the husband the legal duty to furnish his wife with necessaries. This squarely appears to be the law as laid down in the leading case of Wanamaker v. Weaver (176 N. Y. 75), quoting with approval the leading English case of Debenham v. Mellon (L. R. 5 Q. B. Div. 394). (See, also, Schouler Dom. Rel. [5th ed.] § 61: “ On the important principle
The authorities are all to this effect. In Griffin v. Banks (37 N. Y. 621, 623) the Court of Appeals said: “ The rule is, that, where credit is given solely to the wife, upon a sale to her, the husband is not hable although they live together and he sees her in possession of the goods thus bought.” No cases to the contrary are cited. As far back as 1811 it was so held by Lord Ellenborough in Metcalfe v. Shaw (3 Camp. 22). So in Bentley v. Griffin (5 Taunt. 356): “ It is a question of fact whether a tradesman who furnishes goods to a wife gives credit to her or her husband; if the credit is given to her, the husband is not liable, though the wife lives with him, and he sees her in possession of some of the goods.” (Syllabus.)
Coming down to our own times: In Kenny v. Meislahn (69 App. Div. 572, Second Department) the court in concluding an opinion affirming a judgment against the husband, after reviewing the evidence, said: “ It fairly establishes the fact that the support was not furnished upon the credit of the wife, but was solely because of the defendant’s default and was supplied under circumstances which made him chargeable.” The inference would seem clear that if the support was furnished upon the wife’s credit exclusively the husband would not be chargeable. Upon the first appeal in this case (155 App. Div. 523) Mr. Justice McLaughlin said: “ If evidence be introduced showing that they were necessaries, then defendant is liable to pay for them (De Brauwere v. De Brauwere, 203 N. Y. 460), unless he can show that the wife was supplied with
On the second appeal in this case (163 App. Div. 608) the court was dealing with a dismissal of the complaint upon the ground that it appeared that the plaintiff had given credit exclusively to the wife. The court said: “ We do not think that upon this evidence the court should have held, as matter of law, that the credit was given exclusively to the wife. Whether it was or not was a question of fact which should have been submitted to the jury.” This was of course, a clear recognition of the rule that where the credit is given exclusively to the wife the husband is not liable at law. If this were not so, there would be no sense in submitting to the jury the question of credit. If the rule were that the husband is hable in an action at law on the mere showing that the articles were necessaries, the question of credit could not possibly arise. The Second Department took the same view in Wilder v. Brokaw (141 App. Div. 811), the present presiding justice saying: “ This case presents an account for the lodging and the food for two women, for substantially. the same period, which must be justified on the theory that the husband of one of them perforce of that relationship was bound under the circumstances to furnish as a necessary to his wife this maintenance of her sister, and that his wife as his agent ex necessitate could contract therefor. * * * I think that the learned court should have submitted the. question as to whom credit was given to the jury. * * * The theory of the action is that Mrs. Brokaw was constituted
The trial judge fell into his error by attaching undue weight to one sentence in the opinion of this court upon the last appeal instead of being guided by the opinion as a whole and by the point actually decided. In the course of the opinion upon the last appeal, referring to De Brauwere v. De Brauwere (203 N. Y. 460), which was an action in equity brought by a deserted wife against her husband to recover for moneys she had been obliged to expend for necessaries for herself and children, the court said, dealing with the question of necessaries: “If so they were necessaries within the legal acceptation of that term, and the husband was liable to whomsoever furnished them to the wife, no matter to whom the credit was originally extended.” Since the
We are also of the opinion that the verdict, in so far as it is based upon a finding that the defendant had failed to establish that he had furnished his wife with an allowance sufficient to pay for all necessaries, was against the weight of the evidence.
The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Smith and Davis, JJ., concurred; Scott, J., concurred on second ground.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.