Sulter v. Mustin

McCay, Judge. However it may be that the plea set up by the defendant is an unusual one at this day, yet it is none the less the law of this State, that the husband is only liable for necessaries bought by or furnished to the wife. And this is true, whether the liability turn on the presumed agency of the wife to purchase necessaries in his name, whilst they are living together, or upon his obligation to support her in case they be separated. In both cases it is only for necessaries that the husband is liable. As a matter of course, it is not required to constitute necessaries that they should be such in the absolute sense of the word. Such things are necessaries, in the legal sense, as are usual and proper for the use of a family in the circumstances of the parties. Whilst we are not prepared to say that there is no case in which an article intended as a present to a friend may not come within the rule, yet it is obviously a perversion of the meaning of words to class a present of a $12 50 hat as an act of necessity. Social duties unquestionably create wants and necessities as well as do other relations of life, but a present of an article of the character described can hardly be conceived of as a dioty, either of charity or friendship. But in this case the article was not, in fact, received and used. It has not gone to the use of the husband in any sense. If he is liable for it at all, it is in the breach of the contract to take it. The foundation of his liability in all cases is, that he has got the benefit of the property of an [245] other, and the law implies a promise to pay, if it was a proper thing for the use of his family. "We know of no case where the liability has arisen from the mere contract. The husband is liable for necessaries furnished on the order of his wife, on the principle we have stated, but not on the contract when they have not been received, unless she be shown to be his agent. The case would then stand on the extent of the authority as agent. Judgment reversed.