Wanamaker v. Weaver , 76 N.Y.S. 390 ( 1902 )

SPRING, J.

This action was brought by the plaintiff, who carries on an extensive store in the city of Philadelphia, in the state of Pennsylvania, to recover for the purchase price of goods which it is claimed were sold by him to the defendant, the wife of the latter actually making the purchase. The defendant is a member of a prominent hardware firm in the city of Rochester, and at the time the purchases were made and the credit given was cohabiting with his wife, and they were apparently in prosperous circumstances, and their conjugal relations affectionate. They had no children, but for nine years a little boy had been a member of their family, and, while not formally adopted, his clothing was provided, he lived in the family, and was treated in every particular like an own son of the defendant. The articles purchased of the plaintiff were suitable for the station in life in which the defendant and his wife moved. They consisted of towels, hose, shoes, table linen, articles for the little boy, for the wife, and for general family use. The trial court in fact stated to the jury that the articles were suitable, and within the ordinary definition of necessaries, but submitted to the jury as a question of fact to determine in this particular case whether they were necessaries, not because of the intrinsic character of the articles themselves, but for the reason that a suitable allowance was provided for the wife by the defendant, and that goods of like description had already been purchased of other merchants, so that the family were well supplied. The court, during the trial, thus stated his position succinctly:

"‘But if it appears affirmatively that the lady was abundantly supplied with similar articles purchased elsewhere, and that there was not, in fact, any reasonable necessity for such expenditure, the husband cannot be held responsible, unless there is some affirmative proof of actual authority, outside of the authority the law infers from their marital relations.”

And this position was commented upon in extenso in his charge to the jury. We have, therefore, this principle enunciated: That if a wife, living with her husband, seeks to purchase goods of a merchant, the latter must make an inquisitorial examination, and ascertain whether the family possess an adequate supply of the articles which the wife desires to purchase. If she wishes to buy a pair of hose, a towel, a paper of pins, or a pair of shoes for the baby, it is incumbent upon the merchant to be thoroughly satisfied that the household needs replenishing with the articles which the faithful spouse desires. If this is the rule, the only safe course inevitably is for the wife to present to the merchant an inventory of the household goods, and even then he may overstep by selling one towel too many. The marital relation in this country is not so demeaning to the wife as this principle implies. The respondent, by the fact of his marriage, makes his wife his agent for whatsoever necessaries she may purchase, unless he has expressly forbidden the merchant to sell to her upon his credit. This rule may at times work injustice, but good policy and the preservation of the home require that the wife be given the fullest latitude in purchasing what is within the compass of her station in life, and the husband must pay therefor. The authorities to which reference has been made controverting this position are mainly where the wife was living apart from her husband, or where he had expressly forbidden the pledging of his credit. In our judgment, there was no question of fact whether these articles were necessary, as it was conceded that they were intrinsically so, and that they were used in the family in the ordinary way, so that the defendant and his family derived the benefit of their use. It seems that during this period the wife had also purchased of merchants in the city of Rochester goods which were also charged to the husband; and on account of these purchases it is claimed that the articles in controversy were not essential. If, however, the position of the defendant is tenable, then none of these purchases are chargeable to the defendant, for during this period he was furnishing his wife with an allowance for her personal expenses and those of his household. We apprehend a secret agreement between the husband and wife cannot absolve the former from liability to those who sell goods to be used in the family, and suitable for its use. With the benefits accruing to the husband from the marital relation inevitably are attached the burdens which follow in its train. Unless we are to take a step backward in our domestic and social economy by holding that a wife is no longer the partner and companion of her husband, but that she is scarcely more than a slave, we must give full force to the doctrine that the husband, when living with the wife, vests her with the right to purchase whatever may be necessary for the family use; and the only hazard the merchant takes is that the articles must comport with the station in life of the husband, unless the goods are sold after his express prohibition. The trial court also submitted to the jury the question as to whom credit was given for the purchase of these goods. While the question is not entirely free from doubt, we are inclined to believe that this question was one of fact. Mrs. Weaver called at the store of the plaintiff, stating that she desired to purchase goods. The credit man of the plaintiff inquired her name, and was informed that she was the wife of the defendant, and he examined as to the responsibility of the defendant, and then sold the goods, charging them to Mrs. Weaver. The goods were shipped, directed to her at the husband’s residence in Rochester, and, as the account ran along from time to time, she made payments by her own checks. She at this time was receiving the allowance from her husband, and must have expected to pay for these goods therefrom, and we think there is sufficient so that it was properly submitted to the jury to pass upon this question. O’Connell v. Shera, 66 App. Div. 467, 73 N. Y. Supp. 231; Tiemeyer v. Turnquist, 85 N. Y. 516, 39 Am. Rep. 674. Whatever may have been the character of the articles, under these authorities the wife could make a contract by which she would be personally liable for the payment of these goods, and this is especially so since the passage of chapter 381 of the Laws of 1884, removing the disability of a married woman to make a contract. If credit was actually given' to her, instead of to the husband, then she alone is liable. Inasmuch, however, as the first question was submitted to the jury, as we deem, erroneously, a reversal of the judgment becomes necessary.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur, except DAVY, J., who dissents in an opinion in which McLENNAN, J., concurs.