Woodward & Perkins v. Barnes

The opinion of the court was delivered by Royce, J. This action is brought to compel payment for certain goods sold and delivered to the defendant Merritt Barnes’ wife. It is admitted in the declaration that the husband, before the sale and delivery of the goods, had given the plaintiffs notice not to sell and deliver goods to his wife ; and that he had, at all times, furnished her and her children with the necessaries of life, agreeably to her and their station, or the means or money wherewith to procure the same. It was held in the suit between the plaintiffs and the husband, 43 Yt. 330, that, to entitle the plaintiff to recover for goods sold and delivered to the wife and children of the husband after they had been forbidden by the husband from selling and delivering goods to them on his credit, they must show that the articles were suitable to the husband’s circumstances in life, and were needed for the then present use of his family for their reasonable clothing, sustenance, and comfort, according to his rank and condition in life, and that the husband had so far neglected his duty in this inspect, as to make it necessary for some one else to supply his family with such necessaries. The plaintiffs now seek to avoid the effect of that rule, by proof that the goods ■ were procured upon the false and fraudulent representations of the wife, that they were so needed. We do not think this can'be done. The rules of- evidence affecting the liability of the husband, are the same as they would be in an action ex contractu. The principle applies that has always been applied in actions against infants. In those cases it has been held that a plaintiff could not convert an action founded on.a contract, into a tort, so as to charge an infant. Jennings v. Randall, 8 T. R 335 ; West v. Moore, 14 Vt. 447 ; Merrill v. Aden, 19 Vt. 505. Hence, the cause of ac [336] tion stated in the declaration does not entitle the plaintiffs to a judgment. There is another ground why we think the action cannot be sustained. The general principle, that for the torts or frauds of the wife, an action may be sustained against her and her husband, applies only to torts simpliciter, or cases of pure, simple tort, and not where the substantive basis of the tort is the contract of the wife. It was so held in Liverpool Adelphi Loan Association v. Fairhurst et ux. 9 Exch. 420, and in Keenan v. Hartman, 48 Penn. 497. The substantive basis of the tort complained of here is, that by the false and fraudulent representations of the wife, they were induced to sell and deliver the goods to her. But for the sale and delivery of the goods, the plaintiffs would have had no legal cause of complaint. So that the plaintiffs’ right of recovery is made to depend upon the question, whether any such sale and delivery was made, and this clearly brings the case within the rule above stated. Judgment affirmed.