Rozewicz v. Polsky Co. , 1 Ohio Law. Abs. 583 ( 1923 )

FUNK, P. J.

Epitomized Opinion

The A. Polsky Company brought an action against Rozewicz on an account for necessaries, including clothting and house furnishings sold and delivered to defendant at his wife request. The goods were purchased in 1919 during which time the defendant and his wife lived together in a 15-room house and paid $60.00 per month. They; occupied part of the house and sub-let the remainder for $150.00 a month. This money was paid to the defendant’s wife and she also received $28.00 -per week, which was defendant’s wages. Defendant also worked in a bakery and received bread and rolls for his family free, in addition to his wages. At no time did the defendant permit .his wife to run any accounts and all the wife’s accounts were without the knowledge and consent of her husband'.' The trial resulted in a judgment in favor of plaintiff. The defendant prosecuted error, claiming as principle errors: First, that the court erred in omitting the ledger sheet showing the items of the account without prima facie evidence of the defendant’s liability; second, error in the court’s charge upon the question of implied authority of the wife to purchase the goods, and, third, that the verdict was manifestly against the weight of the evidence. In reversing the judgment of the lower court, the Court of Appeals held:

1. In the absence of evidence to show agency of the wife, other than the mere fact that she is wife of the defendant, and that they were living together as husband and wife, the ledger account was improperly admitted for any purpose other than to show the amount due, and the court not having limited its admissibility to that purpose, it was prejudicial error to admit it for the purpose of showing the character of the goods to prove agency of the wife.

2. As the court’s charge tended to lead the jury to believe that they could find that the wife had implied authority to purchase on the husband’s credit solely upon evidence of the relationship of husband and wife,- that they lived together, and that the goods were necessaries, prejudicial error was committed thereby.

3. The verdict was manifestly against the weight of the evidence.