Furlong v. Hysom , 35 Me. 332 ( 1853 )

Rice, J.

— Objection is made because the Judge at the trial instructed the jury that, if the articles sued for, were furnished to Sarah Jane Hysom, (wife of defendant,) and were necessary and proper for her, and were sold and delivered as charged on the plaintiff’s book, and had not been paid for, or settled, then the defendant would be liable in this action, to pay the same, with interest, from the date of the writ.

It is contended that the jury should have been instructed, that it was necessary for them to be satisfied that the- articles were delivered on the credit of. the defendant, before they could find a verdict against him.

The jury were instructed that, “ the defendant would be liable for articles so purchased by his wife, and charged to her, if obtained by his permission, or consent, and if necessary and proper for her.” This qualification gives the full extent contended for by the defendant.

But the specific instructions objected to, were correct. If the articles were necessaries, the jury had a right to infer authority from the husband. During cohabitation, there is a presumption arising from the very circumstances of cohabitation, of the husband’s assent to the contracts made by the wife, for necessaries, suitable to his degree and estate. Etherington v. Parrot, 1 Salk. 118. The husband is bound to-provide his wife with necessaries suitable to her situation, and his condition in life; and if she contract debts due for them during' cohabitation, he is obliged to pay those debts. He is bound by her contracts for ordinary purchases, from a presumed assent on his part. 2 Kent’s Com. 145. It is a rule of evidence, that the mere fact of cohabitation, or that the woman lives with him as his wife, is evidence that she is his agent to purchase necessaries for herself. McCutchen v. McGahay, 11 Johns. 281.

In the absence of other testimony, the shop books of the plaintiff, with his suppletory oath, were competent evidence for the consideration of the jury, to prove the sale and delivery of the'goods.

Exceptions do not lie to the finding of a jury, as against law or against evidence.

Exceptions overruled, judgment on the verdict.

Shepley, C. J., and Howard and Hathaway, J. J., concurred.