Gafford v. Dunham , 111 Ala. 551 ( 1895 )

COLEMAN, J.

F. W. Dunham sued the appellant, F. H. Gafford, and his wife, M. B. Gafford, upon an account for groceries and’ supplies alleged to have been sold by one Boggan, the assignor of plaintiff. The uncontrovertecl evidence shows that the articles were sold to, and upon the sole credit of M. B. Gafford. The contraer for their purchase was made with her only, and all payments which had been credited upon the account were made by her. The articles were charged to her, •and the name of F. H. Gafford no where appears upon' the books of account, nor is it pretended that at any time was he regarded as the debtor. After hearing the ■evidence, the - court, without the intervention of a jury, rendered judgment in favor of M. B. Gafford, and against the husband, F. H? Gafford, who prosecutes the present appeal. At the trial the wife interposed the plea of coverture, and the failure of the husband to give his assent in writing to the contract. This plea was fully sustained by the evidence. We presume the court rendered judgment against the husband upon the ground that, as the contract made with the wife was void, and .as the evidence showed that the articles purchased were necessaries of life, and suitable to the degree and station in life of the wife of F. H. Gafford, his common law liability arose, and'he was chargeable for such necessaries furnished to her. Considered with reference to the evidence as to the furnishing of .the articles to the wife, or •as to the common law liability of the husband for necessaries furnished to the wife, the conclusion of the court was erroneous. The common law liablility of the husband for necessaries and suitable comforts has always rested upon the assumption that credit was given to the husband and not to the wife, and that the purchase was made with his implied assent. In no case did this liability arise whan the facts showed affirmatively that credit was given to the wife and charged to her and not to the husband, and the goods were sold, not upon his implied assent that they were to be charged to him.— Hughes v. Chadwick, 6 Ala. 651; Pearson v. Darrington, 32 Ala. 231; O’Connor v. Chamberlain, 59 Ala. 431; Gayle v. Marshall, 70 Ala. 522.

The evidence also is satisfactory that the goods sued for were furnished to some one during the absence of both husband and wife, from home, and that neither ever received or used the articles constituting the account. The fact, that M. B. Gafford had authorized her cook to order groceries from Boggan for the use of the family, to be charged to her, in no , event would impose a. liability at common law upon the husband, upon the order of the cook given to the merchant during the absence of both husband and wife. — Strauss v. Glass, 108 Ala. 546, and sections of the Code construed in the opinion.

■ The judgment is reversed and a judgment will be here rendered in favor of the appellant.

Reversed and rendered.