Allen v. Rieder

Opinion by Head J., The plaintiff in this action seeks to recover the sum of $225, the price of a fur garment which he made on the order of the wife of the defendant, given in December, 1906. The. coat was delivered to her apartment at the Hotel Lorraine in the city of Philadelphia on or about December 24 of that year. The evidence adduced at the trial, which was brief and practically uncontradicted except as to one point, disclosed the following state of facts: Some nine months prior to the transaction the defendant [538] and his wife separated and since that time had lived separate and apart. At the time of the separation the family of the defendant consisted of himself, his wife and a daughter. The defendant, who was a pawnbroker, was possessed of an annual income of from $6,000 to $7,000. The evidence does not disclose the causes out of which the separation arose, but it does show that they were of such character that the husband filed a libel in divorce which was pending and awaiting trial at the time of the transaction referred to. At the time of the separation he provided for the maintenance and support of his wife and daughter. He paid regularly $75.00 per month for a suitable apartment for her at the hotel already mentioned. He allowed and regularly paid to her in cash $41.50 per week to enable her to maintain herself. He made a further cash allowance of $10.00 per week for the daughter, and in addition thereto paid such bills as she, the daughter, contracted for her clothing, etc. It will thus be seen that the defendant was turning over to his wife after their separation substantially the full one-half of his income for her support and maintenance. There was never any claim advanced by her that the provision thus made for her was inadequate in proportion to the means of her husband. She filed no libel for divorce. She asked for no alimony pendente lite, and appears to have been satisfied that the provision voluntarily made for her by her husband was fully equal to any demand she could have legally enforced against him. There had never been any prior dealings between the plaintiff and the defendant or his wife. Whilst there is some dispute in the evidence as to the assertion of the defendant that he telephoned to the manager of the plaintiff’s store a notice that he woúld not be responsible for the payment of the garment ordered, and that such notice was within a day or two after the order was given, there is no dispute that as early as December 14, ten days or more before the coat was delivered, he caused to be published in the Philadelphia "North American” a notice to all persons warning them to sell no goods to his wife on his credit. [539] With the testimony in this condition, the learned counsel for the defendant presented a point for binding instructions which was refused, and the case was submitted to the jury, resulting in a verdict for the plaintiff. The court thereafter refused a motion for judgment n. o. v. and entered judgment for the plaintiff on the verdict. The reason on which the law rests the liability of a husband to pay even for necessaries furnished to his wife on her own order was clearly stated as early as Cany v. Patton, 2 Ashmead, 140, by Judge King in the following language: “ It is a mistaken notion to suppose, that a married woman has, from the marital relation, the right to make contracts, even for necessaries, which shall be binding on her husband. The obligation of the husband for necessaries supplied her during coverture, arises from the law regarding her as his agent for that purpose; and hence his assent is implied to all contracts of this kind, made through her during cohabitation: Clancy on Married Women, 23; 1 Salk. 113. But, when circumstances exist, which render such assent irreconcilable with truth or reason, the law will not infer it. Such cases are presented, .... where, as here, they (necessaries) are furnished after a mutual agreement to live separate, in which an adequate allowance is stipulated to be paid, and actually is paid to the wife by the husband, for her future comfort and support. To infer, under such a state of facts, his assent to her purchases, would be a presumption strained against every just deduction of truth.” This case has been cited with approval in almost every decision on the subject that has been rendered since that early day. In Walker v. Simpson, 7 W. & S. 83, Mr. Justice Kennedy, speaking for the court, uses this language: “All persons supplying either food, lodging or raiment to a married woman living separate from her husband are bound to make inquiries, and they give credit at their peril: 2 Kent’s Com. 146, and the cases there referred to.” In Com. v. Richards, 131 Pa. 209, Mr. Justice Clark says: “If a proper provision has been made for a wife, her hus [540] band is not liable even for necessaries furnished for her support: Cany v. Patton, 2 Ashmead, 140; Alley v. Winn, 134 Mass. 77.” In speaking of the liability of a husband for the support of his wife, or necessaries furnished to her, living separately, it is said in Endlich & Richards on the Rights of Married Women, sec. 81: “If a proper provision is made for the wife, the husband is not liable.” As already stated-, there is no dispute about the fact that at the time the wife of the defendant gave the order to the plaintiff she was living separate and apart from her husband, and that she had been receiving, during the entire period of that • separation, without objection or complaint, what must be admitted to have been an adequate provision for her support. Under such circumstances her agency ceased when the family relation was broken up and the parties began to live separately, and this leaves the plaintiff in the position of seeking to bind an alleged principal for the undertaking of another when in fact no relation of principal and agent existed at the time. Even if we regard the verdict of the jury as having established that the plaintiff had no actual notice that the wife was living separate and that her husband disclaimed responsibility for her purchases, his situation is not thereby improved. As we have already seen, the public records of the courts disclosed the fact that the defendant was seeking a divorce. He had caused to be published in the public press of the city a warning to all tradesmen that his wife was not to be regarded as his agent for the purpose of purchasing goods on his credit. ■ If he were required to give actual personal notice to each person with whom his wife might undertake to deal, the long-established principle of law already referred to would afford him no protection whatever. The law casts some duty on the dealer who undertakes to sell goods to one person on -the credit of another. He must know that such a relation still continues to exist between the woman wlio buys arid the man whom she seeks to charge with her [541] purchases as would make the latter legally responsible for her acts. If, in point of fact, no such relation exists, the dealer must look to the alleged agent to whom he sold, and cannot charge the supposed principal. In treating this phase of the case, Judge King, in the opinion cited, holding that no such notice in fact to a tradesman was necessary to exonerate the husband, says: “In Chitty on Contracts, 47, the decisions on this point are correctly summed up thus: 'In such cases, the presumed authority of the wife arising from cohabitation, does not exist; and it is incumbent on a tradesman to make inquiries, and if he trusts the wife, he does so at his peril; for no notice to him, that the wife has a separate maintenance, is necessary, unless he has trusted her before, and was not aware of the separation.’ ” After discussing the English cases on the subject, the learned jurist thus concludes: “The implied agency created by law, from the marital relation between husband and wife, and the moral obligation of the husband to furnish her necessaries, under such circumstances, terminates; and, when was it supposed, that after an agency has terminated, the principal is liable for acts of the agent, to all the world except to those to whom he can trace notice of such termination?” The application of these principles of the law to the undisputed facts disclosed by the record before us seem to us to necessarily lead to the conclusion that the plaintiff’s case failed. The learned trial court therefore should have affirmed the point of the defendant for binding instructions, or, failing in that, should have granted the motion for judgment notwithstanding the verdict. Judgment reversed, and judgment is now entered in favor of the defendant notwithstanding the verdict. The costs of this appeal to be paid by the appellee.