Snyder-Bell Grocery Co. v. Hamilton

BUCK, J. Snyder-Bell Grocery Company, a partnership consisting of Harry Snyder and W. L. Bell, sued John A. Hamilton and wife for certain groceries and merchandise. They alleged that during the period from September 30, 1921, to October 17, 1923,. they sold to the defendants groceries aggregating in price $1,474.94, and that the defendants made partial payments on the account to the amount of $1,111.20, leaving a balance unpaid of $363.74, for which they sued. It was alleged that the balance due on this account was for groceries which were necessaries, and that none of the credits applied by plaintiffs by reason of the partial payments had been applied to that part of the account which was for groceries furnished Mrs. Hamilton for the support of herself and- children, but that said payments had been applied to that part of the account for which the defendant John A. Hamilton alone was liable. The cau'se was tried before a jury, and no question was raised as to the balance due or as to the prices charged for the groceries. Mrs. Hamilton testified that she received the groceries, and that they were satisfactory as to amount, quality, and price. Upon the motion of defendant, Mrs. Hamilton, the court instructed the jury to return a verdict in her favor, which the jury did. Judgment against John A. Hamilton was rendered for $373.74. The judgment appears to be for $10 more than the bill sued for, but $10 less than the bill and interest prayed for. We presume that the additional $10 is for interest. No question is raised as to the amount of the judgment, and we do not feel it our duty to attempt to reform the judgment in this respect. The only question involved in this case is, Did the trial court err in peremptorily instructing the jury to find in favor of the defendant Mrs. John A. Hamilton? A wife cannot bind herself or her separate estate, ordinarily, by contract, except for necessaries furnished her and her children, or for the benefit of her separate estate. Harry Snyder testified: That he sold Mrs. Hamilton the groceries, and they were delivered to her at her house, and he personally sent her statements from time to time. That the account was charged to both Mr. and Mrs. Hamilton. That Mrs. Hamilton had two minor children who lived with her, and that the minimum amount of groceries that three people could live on a month would be $25. That the cost of groceries for a family of three, such as Mrs. Hamilton and her minor children, would vary, but that in his judgment $25 a month was the minimum cost. It is shown: That the Hamiltons had living with them a married daughter and a married son, and that Mrs. Hamilton also boarded some students. That partial payments on the grocery bills were made, without any request as to how they should be applied; that is, as to whether they should be applied on the groceries used and eaten by Mr. Hamilton and his adult children and the boarders, or applied on the groceries eaten by Mrs. Hamilton and the minor children. Under such circumstances, the plaintiffs would have the right to apply them on any part of the bill due, and they could apply them, as they claimed they did, on that part of the bill chargeable to Mr. Hamilton, as contradis-tinguished from the part for groceries furnished Mrs. Hamilton and her minor children as necessaries. The evidence of plaintiff shows that he called up Mrs. Hamilton every morning over the telephone and she ordered the groceries. Mrs. Hamilton testi-. fled that the order for groceries was given by her, but that sometimes her daughters and her husband did the ordering. The evidence shows that Mrs. Hamilton owns a piece of rental property, apparently subject to her debts. It is evidently for this reason that the plaintiff has appealed. In the case of Menard v. Schneider (Tex. Civ. App.) 48 S. W. 761, groceries were furnished to a family, charged to the husband, and monthly statements were rendered to him. One of the plaintiff firm testified that they knew the husband was insolvent and did not extend him any credit. The orders were given to a solicitor, sometimes by the wife, sometimes by a-daughter, and at times by the cook. The court said: “In order to bind appellant or her property for the goods, it was necessary to show, in addition to the fact that they were necessaries, that she had contracted for them. Rev. St. 1895, art. 2970 [article-4624], There was no evidence whatever to show a contract on the part of appellant [Mrs. Menard], either express or implied, for the purchase of the goods. Orders were given, sometimes by the wife, and sometimes by the daughter and cook. As the husband is charged with the support of his wife and children, these orders would be presumed to be given at his direction, and the goods furnished upon his credit and to him. There is nothing from which it can be inferred that the wife knew that they were being furnished on her own credit. She said or did nothing to support such an inference.” The evidence in the instant case shows that Mrs. Hamilton knew that the groceries purchased from plaintiff were charged to her and her husband jointly; that she ordered at least a large part thereof herself; that such [754] groceries were necessaries to tlie extent of $25 a month for the support of herself and two minor children. She testified: “I have bought groceries from the Snyder-Bell Grocery Company. I understand the amount that I owe down there. X have often been presented with a statement for the amount. I think $387.74 is the correct amount —$374 or $384, I think, is about correct. I personally purchased these goods. With reference to how they were purchased, they were solicited by phone calls each morning, and the order was given, sometimes by Mr. Hatnilton, sometimes by my daughter, and sometimes by the cook. I knew they were being charged to me and my husband. My husband knew that. He made no objection. My husband works at the mill, and I attend to the business affairs, part -of them, such as the purchasing of the groceries and the payment of the bills; I attend to that while he is at work. I suppose that he authorized me to attend to that part of the business; that is, it was understood that I was attending to that part of the work. Then he would pay for the groceries, or I did; that is, we simply had the money in one bunch. * * * I have often received a statement of this account. I think statements have also been sent to my husband at the mill; we get our mail there. I never complained of them overcharging me. So far as I am concerned, the account is just and reasonable and honestly due. I lived there at the time these groceries were bought. “X have two small children and two married children. They boarded with me. ’ The little children did not board with me; the small children did not pay any board. They ate part of the groceries, and I ate part of them. During this time I bought a few groceries elsewhere, but I bought most of the groceries from Snyder-Bell. I paid most of the payments on this account, I paid the delivery boy. I made all of the payments that were made. I do not think I had any conversation with the delivery boy at the time I paid him. I just paid him and told him to apply it on the account. After-wards I received statements showing the credits were made there; there is no dispute as to that. This account was extending over a year’s time; I was living there all that time. My two minor children were living there and helped eat these groceries. I have a married daughter and a married son. They were there. I have four or five school boys that were boarding there all the time. They also stayed there and ate part of the groceries.” Harry S. Snyder testified: “We have sold Mrs. Hamilton some groceries. Those that were sold to her, I feel safe in saying were delivered to her. I personally sent her statements from time to time. She never questioned the accuracy of the statements. I have sent statements to her husband, John A. Hamilton. With reference to how the account was charged and whether it was charged to both, I would say it was a natural understanding that both were responsible. Both of them did not promise to pay for them; my dealings were with Mrs. Hamilton. However, I have at regular intervals mailed Mr. Hamilton statements to his place of business, showing that the account was charged to him. He never did object to that. This Exhibit A attached to the plaintiff’s petition is a correct statement of the amount due. At the end of the different months the bills were sent out. It is supposed to be correct. X sent out bills the 1st of each month and on some occasions on the 15th of each month. “With reference to knowing who these groceries were to be consumed" by, I will say it was generally understood it was the Hamilton family, and I also knew she had .at different times a few boarders. With reference to what constituted her family, I will say that I had met Mrs. Hamilton and one of her married daughters, and two children, and I knew of her having a married son. She told me they were living there with her. We sent these groceries to the house where they were all living. “With reference to where I acquired that business out there and from whom, I will say that -before I originally commenced selling Mrs. Hamilton she had been buying groceries from us purchased at the South Side Grocery; she had an account at the South Side Grocery when I purchased it and became the owner of it, and I just continued to sell her. I did not see Mr. Hamilton and have a talk with him about the account. I did not know him at that time. I met Mrs. Hamilton personally about a year after I commenced selling her, but I talked to her personally every morning. That was with reference to orders over the telephone and about the account.” In Trammell v. Neiman-Marcus Co. (Tex. Civ. App.) 179 S. W. 271, Neiman-Marcus Company sued W. T. Trammell anl bis former wife, Mrs. Fay Trammell, for dry goods purchased by Mrs. Trammell prior to the divorce.- After disposing of the case as to W. T. Trammell, the court said: “We will now consider the appeal of Fay Trammell. The question as to her is: Were the goods contracted for by her, and were they necessaries for herself? The evidence shows that she in person purchased the goods and had them charged. She admits in her pleadings that the goods were necessaries for her own use, and she testifies to the same effect. Having contracted for the goods in person, and she testifying they were necessaries for her own use, renders her personally liable for the value of the goods: Under the pleadings and evidence of Fay Trammell, there was no error in the court in instructing the jury to find against her.” In McKee v. Popular Dry Goods Co., 240 S. W. 567, the plaintiff sued W. A. McKee and his former wife for goods purchased by his wife prior to the divorce. The wife pleaded her coverture. The Court of Civil Appeals of the El Paso District said: “The evidence showing that the goods were sold to the wife in person, and that they were necessaries and for her own use, and much of them for supplying her house, her separate property, renders "her personally liable for their value. But such would not necessarily relieve the husband from liability either to the seller or to 'the wife, in the event she should be required to pay the seller. Trammell v Nei [755] man-Marcus Co. (Tex. Civ. App.) 179 S. W. 271.” See Palmer v. Coghlan (Tex. Civ. App.) 55 S. W. 1122; Hild v. Heilman (Tex. Civ. App.) 90 S. W. 44. In the last-cited case, the court said: “The fact that she bought the goods and gave her note for the price thereof is sufficient to show that she contracted for them, in the absence of some evidence tending to show the contrary.” In Speer’s Law of Marital Rights in Texas, p. 204, § 154, it- is said: “In order to hold the wife Hable for necessaries furnished herself or children, the debt should be contracted by her personally, or by some one acting under her authority. Such seems to be the intention of our statute, and has been the annunciation of our courts. That the credit was extended to the wife, and not to the husband, will not relieve him from liability. Its only effect would be a possible charging of the wife according to the facts, not a release of him. But where, as it formerly was, the control of the wife’s separate estate, all its fruits and revenues, and all her time and labor, belong to the husband, it is idle to speak of a dealer’s extending credit to the wife, and looking alone to her for payment. It could only be under the most extraordinary circumstances that a purchase by her would not be binding upon him.” By article 4621, Rev. Statutes, as amended in 1913 (Acts -33d Leg. c. 32 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4621]), the rights of the wife to manage and control her separate property were enlarged, and the liability of the separate estate of the husband for debts contracted by the wife, except for necessaries furnished the wife and her children after their marriage, is denied. The wife is given the right of the sole management, Control, and disposition of her separate property, both real and personal. In the instant case no special plea of coverture was made by the wife. If such plea were available, it can be waived by a failure to urge it. But the requirement to plead coverture in order to make it available as a defense is subject to the exception that coverture may be taken advantage of though not pleaded, where the pleadings of plaintiff affirmatively show that at the time of the accrual of the cause of action the defendant was a married woman. We suppose that the pleadings of the plaintiff sufficiently show this to be a fact. But we hold that the evidence shows that the groceries, at least $25 a month thereof, were necessary to the support of Mrs. Hamilton and her two minor children. The evidence shows that Mrs. Hamilton bought groceries from plaintiff for a period of time extending from September 30, 1921, to September 30, 1922. Therefore we think that the judgment in favor of Mrs. Hamilton was error,, and that judgment should have been rendered by the trial court against her,' upon the uncontradicthd evidence, and upon an instructed verdict against her instead of for her, for $300, with interest at the rate of 6 per cent, from the date of the judgment. The judgment will be so reformed, and, as reformed, will be affirmed, with costs of appeal taxed against Mrs. Hamilton. Reformed and affirmed.