Kind v. Bodek ( 1917 )

Opinion by

Williams, J.,

In an action to recover the price, of a diamond bar pin alleged to have been sold to a wife upon her individual credit, defendant denied undertaking to pay for it, and alleged it was bought upon her husband’s credit.

Plaintiffs’ clerk testified: “Q.- — Do you remember selling the defendant, Mrs. Bodek, anything? A. — Yes, sir. Q. — You sold this diamond bar pin? A. — Yes, sir...... The understanding with me was the pin was to be charged and sent to her......Q. — Did she say anything to you about it? A. — To charge the pin to her. Q. — Did she say that? A. — Yes, sir. Q. — ......Now did she or did she not say that? A. — She said to charge and send it to her.”

The court found for plaintiffs, refused judgment n. o. v., and from the judgment entered upon the finding we have this appeal.

’ Appellant contends that she was presumptively acting as her husband’s agent in the transaction, and cites, inter alia: Moore v. Copley, 165 Pa. 294; Brouse v. Oliger, 36 Pa. Superior Ct. 399; and Clothier v. Wolff, 66 Pa. Superior Ct. 328; to which we might add: McCreery v. Scully, 67 Pa. Superior Ct. 524. This line of cases has two distinguishing features. There was no evidence that the wife undertook to pay, and the goods sold were family necessaries. Here we have express testimony that defendant undertook to pay, and no evidence to show the article purchased was a family necessary. While plaintiffs’ evidence is in some respects inconsistent, this inconsistency was for the trial judge whose finding is conclusive.

The judgment is affirmed.