Hass v. Brady

Scott, J. In Hovember, 1904, the defendant, a married woman of large independent means, living apart from her husband, ordered from plaintiffs two costumes aggregating in value $238, which, she directed' should be sent, when completed, to her at an hotel at which she then resided and, at the same time, directed that the bill should be sent to her husband. She had no direct authority to pledge her husband’s credit for the purchase; her authority to do so cannot be presumed from the fact of cohabitation, for she and her husband were separated, and there is not the slightest [236] evidence that the husband had neglected or refused to supply her with such clothing and other necessaries as were within his means and reasonably suitable to the station in life in which the parties were situated. Hpon the evidence, there was a total lack of everything necessary to show that defendant had any right to attempt to make her husband liable for these particular clothes, either upon the ground of implied agency, or in the fulfillment of his marital duty to supply his wife with necessaries. Wanamaker v. Weaver, 176 N. Y. 75; Hatch v. Leonard, 165 id. 435. It is futile to urge, as the respondent does, that the question of the husband’s liability is not involved in this appeal. It is very directly involved. The defendant purchased and received the clothes for her own use. Her contract and her consequent liability was complete, unless her husband was liable. She may not escape liability because, by her direction, the bill was sent to her husband. This, certainly, did not make the transaction a sale to the husband, did not create any liability on his part, and does not show, or even tend to show, that plaintiffs extended the credit to the husband, to the exclusion of the wife. They simply complied with her order. If she had directed the bill to be sent to her bank, and the bank, for lack of funds to her credit, had refused to pay, it is certain that the defendant could not have thus escaped liability. Hpon the same principle, she cannot escape now. It would be a miscarriage of justice to deny the plaintiffs all relief, simply because they relied upon defendant’s erroneous representation that her husband would pay the bill. And yet, if the husband is not liable, this judgment would work such a miscarriage. • The judgment should be reversed and a new trial ordered, with costs to appellants to abide the event. Bischobt, J., concurs.