Woodward & Perkins v. Barnes , 43 Vt. 330 ( 1871 )

The opinion of the court was delivered by

Ross, J.

The defendant, Feb. 6, 1867, forbade the plaintiffs further to deliver goods to his wife and children on his credit, saying that he wanted no more account with them. This he had the right to do. He had the right to withdraw the agency, which the law presumptively gives to the wife to make, for him, on his credit, such purchases as are usually made by wives for use in the family. He had the right to make all such purchases himself. If he allowed his wife, generally, to exercise the usual agency of purchasing on his credit, he had the right to restrict the plaintiffs from treating her as clothed with this general power. Such restriction terminated their right to deal with • defendant’s wife as clothed with a presumptive agency arising from the fact that he was her husband cohabiting with her, and allowing her to make such purchases. Thereafter they had the right to deal with her, only as his agent, ex necessitate, flowing from the duty, which the law casts upon the husband, to furnish his wife and family such articles as are in law denominated “ necessaries.” That articles furnished the wife and family may, in the legal sense, become “ necessaries,” something more must be shown than that the articles are, at the time of the purchase, needed for the reasonable clothing, sustenance and comfort of the wife and family according to the husband’s condition and position in life. Every large family like the defendant’s needs for use all the articles named in plaintiffs’ specifications, and would not be likely to purchase them long before they desired to use them. If this be all that it is incumbent on a party to show, in order to charge a husband with necessaries furnished to his wife and children- against his will, or without his actual or presumed assent, it is difficult to see how he can exercise any control over his wife and children in their purchases of such articles, or any restrictions upon others in furnishing them. All elementary writers recognize his right to furnish such articles himself, and also his right to supply them by furnishing money or credit to his wife and children for that purpose. So long as he reasonably discharges this duty in cither ;,.of the ways mentioned, no one has the right to step in and dis- : charge it for him, or to treat his wife and children as his accredited agents for that purpose. Whenever, therefore, a party, who has been forbidden to discharge this duty of the husband, undertakes to do it for him, he does so at his peril, and with the burden of showing, not only that the articles furnished are needed for present use in his family for their reasonable clothing, sustenance and comfort according to his rank and condition in life, but also that the husband has so far neglected his duty in this respect, that unless he, or some other one sustaining like relations to the husband with himself, does furnish them, the wife and children cannot reasonably be supplied with them and must suffer for the want thereof. In other words, the party furnishing them must show affirmatively that the articles are suitable to the husband’s circumstances in life and needed for present use, and that the husband has so neglected his duty in this respect that it is necessary for the wife and children to apply to some one standing in like relations to the husband with himself and for some such one to furnish them in order to supply the then wants of the wife and children. The articles must not only be suitable and needed, but the use of the wife and children as his agents, with the particular party, for furnishing them, must have become a necessity. Such needful and suitable articles, -furnished the wife and children under such circumstances, are, in law, “ necessaries.”

The mutual relation only clothes the wife with the power, in the name of, and on the credit of the husband, to supply herself and children with “ necessaries” in this sense. The husband, i>y[[[ prohibition, cannot divest the wife of this power. The county/)I court took the case from the jury and directed a verdict for defendant in reference to the purchases made by the wife, for herself and family, after the defendant had forbidden the plaintiffs to make such sales to his wife on his credit. We find no error in this ruling. We think the plaintiffs’ evidence fell short of tending to show a case against the defendant within the law. The most that evidence tended to show was that the articles delivered the wife and children were, in kind, what would be denominated necessaries, and were apparently needed for úse at the time they were purchased, and that the plaintiffs were prohibited to furnish them on the defendant’s credit. One of the plaintiffs admitted that he frequently saw defendant’s wife and children trading at the other stores, but whether on his credit or not he did not know. No testimony was introduced tending to show that defendant had restricted his wife from making such purchases on his credit with any others than the plaintiffs, or that he did not furnish the wife money to make such purchases, further than the fact that she made these purchases on credit.

Neither do we find any evidence tending to show that the defendant ever ratified the unauthorized acts of his wife and children in making these purchases. Nothing is shown as to what became of the goods after they were delivered to the wife and children. None of the articles are traced to the defendant’s house, or shown to have been used in the defendant’s family. We think if the plaintiffs would charge the defendant by reason of his having ratified these unauthorized purchases, they should have shown that the goods went to defendant’s use, with the knowledge that they were procured of the plaintiffs on his credit. If the plaintiffs had shown the defendant allowed the goods to be brought to his house and used in his family, knowing they were purchased of the plaintiffs on credit, this would have amounted to such a ratification as would have rendered the defendant chargeable. The plaintiffs seem carefully to have avoided communicating any knowledge of these charges to the defendant. They promised him at the time of the prohibition that they would not again charge him for goods delivered his wife and children, and then within a month or two commenced this account, and continued to make charges to him for about two years and a half, and never notified the defendant that they were delivering goods to his wife and children on his credit, though they frequently saw him in their store.11

Among the charges was one for a bill of crockery purchased by defendant’s daughter for her own use. After the entire account had accrued, the plaintiffs called upon defendant for pay. He offered to pay for the crockery, admitting that he authorized that purchase, but knew nothing of the others. The plaintiffs claimed that this was such an acknowledgment of the right of his family to purchase of plaintiffs on credit that they had the right to go 'to the jury with the question, whether he authorized the other purchases contained in the plaintiffs’ bill. If the plaintiffs would avail themselves of that admission, they must take it with the limitation the defendant put to it. While his admission that he authorized that one purchase would not tend to show that he authorized the others, his denial of having authorized the other purchases must be taken as a part of what he said on that occasion, and clearly excludes any tendency to show authority to make the purchases. The plaintiffs offered to show that the wife when making the purchases said “ the goods were needed and were necessaries.” This evidence was claimed to be admissible to show defendant’s neglect to furnish his family with necessaries. It is not claimed that the wife could have been a witness against the husband on the trial for this purpose. If the wife, when under oail, could not testify on this point, evidently her sayings made when she was not under oail, though at the time of making the purchases, are inadmissible. The plaintiffs have cited authorities showing that the admissions of the wife bind the husband when she acts as his accredited agent. The very question at .issue here was whether the plaintiffs showed such a state of facts that the wife could act as defendant’s agent from necessity, and to. allow her admissions to bind him would be to assume the question in issue to have been proved. We find no error in the rulings of'the county court.

The judgment is affirmed.