Fairbanks v. Ainsworth ( 1933 )

FLY, Chief Justice.

This is a suit filed by appellees, J. W. Ains-worth and C. W. Colgin, against appellants, G. D. Fairbanks and his wife, Margaret Mc-Allen Fairbanks, to recover on a certain promissory note of $1,197.94, executed by Mrs. Fairbanks for groceries purchased by her, and on an open account; said groceries being for herself and her children. Mrs. Fairbanks promised to pay the note out of her separate property. It was also sought to charge the community estate of the husband and wife. G. D. Fairbanks alleged that he had not abandoned his wife, but did not live with her and did not authorize the purchase of the groceries; that they were purchased by Mrs. Fairbanks and used in her household for herself and her children by a former husband and her relatives. The. husband, also alleged that she had sufficient separate property to secure payment of the amount due for the groceries. The court rendered judgment that appellees take nothing against G. D. Fairbanks or his separate estate, but rendered judgment against Mrs. Fairbanks for $1,386.-55, holding her separate estate and the community property liable for the debt, and authorizing execution against said estates.

The first proposition is that credit has been extended to a married woman on a contract for payment out of her separate estate, and the community estate cannot be lawfully bound for debts made by her for herself and her children; said children not being those of her present husband. It is the general rule that the husband is liable for necessaries furnished the wife, but, where necessaries are sold to the wife on her own responsibility and in view of her separate estate, the husband will not be liable for the same. Crosby v. Harris (Tex. Civ. App.) 234 S. W. 127; Colonna v. Kruger (Tex. Civ. App.) 246 S. W. 707. The question as to whether the wife had bound herself bo pay for the groceries out of her separate estate was one of fact, and the court found that she had so contracted. There was testimony to support the conclusion.

The credit was extended to Mrs. Fairbanks and her .separate estate alone, and the groceries were shown to be necessaries for her and her children. We think the separate estate alone, of the wife, was liable for the debt, and that it was error to render a judgment binding the community estate.

The judgment will be so amended as to exclude the community estate from liability for the debt for the necessaries sold to the wife alone on her credit secured by her separate estate, and, as amended, the judgment will be affirmed.