Hatch v. . Leonard

Parker, Ch. J. We have decided at this term of court that in an action to recover against an infant for goods sold it is not necessary to allege in the complaint that the articles furnished were necessaries. As a foundation for that decision we called attention to the practice as it obtained at common law in an action to recover for necessaries furnished an infant, which was that the declaration need contain only counts as in an action for debt, for board and lodging, or goods furnished. (Goodman v. Alexander, 165 N. Y. 289.) Precisely the same rule applies to a complaint in an action to recover for necessaries furnished to a wife. This complaint alleged that the plaintiff “ sold and delivered to defendant at his request certain merchandise * * * to wit, dry goods, being of the value of three hundred and thirty-five 85-100 ($335.85) dollars, *438 which sum defendant promised to pay therefor to plaintiff, as aforesaid. That no part of said sum has been paid.” It will be observed that the complaint alleges a sale of goods to defend-, ant, and if it contained no reference whatever to defendant’s wife it could not be questioned that plaintiff could prove under it that the goods were purchased by the defendant’s wife for the use of herself and her children, and that they were necessaries within the Goodman Case (supra). But as the plaintiff alleged more in the complaint than was necessary, namely, that the purchase was made by the defendant’s wife as defendant’s agent, it is claimed that the plaintiff cannot recover except by proving an express agency and that evidence tending to show facts from which the law will imply an agency is an attempt to prove a different cause of action. A brief examination will show that this position is not well taken. It should be noted that as to the matter of agency the complaint simply alleges that the wife was the defendant’s agent; it does not allege that the defendant had expressly authorized her to make the purchases, but instead the draftsman was con-: tented with alleging the fact of agency, and the allegations of the complaint are satisfied, therefore, by proving either an express agency or the facts from which the law implies an agency. An express agency was not proved ; for it does not appear from the evidence that the defendant ever authorized his wife to make any of the purchases, nor does it show that they Avere living together as husband and wife, but instead the fact distinctly appears that they were living separate and apart from each other. Nevertheless it Avas possible that the plaintiff could have proved facts from Avliich the law would imply an agency on the part of the Avife to purchase these goods for her husband. For notAvithstanding the separation of husband and wife, the former is bound to support the latter together with her children in the absence of either an agreement or a decree of the court relieving him from that burden, and in such a case if the wife purchases only those things which may be held to be necessaries, the Iuav implies an agency on her part to make the purchase on the husband’s credit. *439 The authorities cited as holding otherwise, as I read them, are not at all in conflict with the views so far expressed, but, on the contrary, confirm them. The case of Montague v. Benedict (3 B. & C. 631), so far as appears from the report, was an action for jewelry furnished to the wife of the defendant. The complaint was the ordinary one in assumpsit for goods sold and delivered. The plea was the general issue. There the plaintiff was nonsuited, it is true, but not until after the evidence on both sides had been introduced, and the real question involved was whether, under the evidence adduced, the goods were necessaries. In Clifford v. Laton (3 C. & P. 15) it appeared that the defendant’s wife, who personally ordered the goods, was living apart from her husband. The complaint was for goods sold and delivered, and the plea was the general issue. Ho objection was made as to the sufficiency of the declaration. In Baker v. Barney (8 Johns. 72) the defendant had parted from his wife by consent, but, nevertheless, was held liable in an action for gtiods sold and delivered, being necessaries sold to the wife. In Cromwell v. Benjamin (41 Barb. 558) the action was brought to recover the value of a bill of goods furnished by the plaintiff to the defendant’s wife and children. It was there said : “If the liability of the husband for necessaries furnished to his wife rested solely on the ground of an agency in fact, express or implied, it would be somewhat difficult to sustain the report of the referee in this case. * * * But the husband may be liable for necessaries furnished to the wife, in certain cases, though the existence of an agency or assent, express or implied in fact, is wholly disproved by the evidence, and this upon the ground of an agency implied in law, though there can be none presumed 'infact.” The plaintiff, claiming that the facts existed in this case from which the law would imply an agency on the part of the wife to purchase the góods in question, attempted to prove such facts, but they were excluded by the court on the ground that they were not admissible under the pleadings, and the *440 exceptions taken to such rulings entitle the plaintiff to a reversal of the judgment.