Bisbee v. McManus

Pierce, J. This was an action of contract on an account annexed, to recover $14 for four hats and two veils sold and delivered to the daughters of the defendant on his credit. The evidence for the plaintiff shows that the defendant was in the employ of the city of Boston earning $18 per week; that his wife died on December 27, 1915; that the plaintiff came to his house on the morning of the death of the wife; that four minor daughters lived at home; that the two oldest daughters asked the plaintiff to make and procure for them and for the two younger children hats and veils to be worn at the funeral of their mother; that the hats and veils were delivered; that the price was not agreed upon; that the price charged was reasonable; that the defendant was present during the conversation in which the hats and veils were ordered, but took no part in it; that the daughters were told the price four days after the funeral and they stated that their father would not pay so much; that demand was made upon the defendant eleven days after the funeral and he said he would ask his daughters about the matter, and later he offered the plaintiff $8 and refused to pay more. The evidence for the defendant tended to prove an express contract to furnish hats and veils for $8; that the defendant did not authorize his daughters to purchase hats and veils from the plaintiff and that he had never previously authorized his daughters to purchase hats from the plaintiff. The presiding judge found for the plaintiff for the full sum set forth in the account annexed. His ruling “That the defendant [126] neither expressly nor impliedly authorized the purchase of the goods set forth in the account annexed,” is not inconsistent with a finding that the defendant adopted and ratified the contract by permitting his minor children to retain and use the articles purchased from the plaintiff with his knowledge, as also by his offer to pay the price which his daughters contended was the sum stipulated to be paid. Upon the evidence it cannot be said that hats and veils for the purpose purchased are not within the class of “necessaries.” Nor could it have been ruled that upon all the evidence and the pleadings the plaintiff was not entitled to recover. The request to rule "That if the plaintiff is entitled to recover in any amount then that amount cannot exceed the amount agreed upon by and between the plaintiff and the defendant’s daughters,” assumes the proof of a disputed fact, and was refused rightly. Order dismissing report affirmed.