Sturtevant v. Starin

By the Court, DowNER, J. The court below erred in instructing the jury “ that if they found that the goods purchased of the plaintiff by the wife of the defendant in his name were such goods as were suitable and necessary for the comfort and standing of himself and his family, then they must find for the plaintiff.” There was evidence tending to prove that [269] the wife of the defendant, at the time time of the purchase of the goods, had deserted him without cause. They ought to have been instructed that, in addition to the facts contained in the instruction, they must find that she was living with him at the time of the purchase, or, if she had then deserted him, that she had good cause for such desertion. The court also instructed the jury, “that if the defendant’s wife had deserted him at the time of such purchase, without cause, and the jury should find that the plaintiff had no knowledge of such desertion, the defendant would be liable for the goods.” This was error. If the wife elopes, though the tradesman has no notice of the elopement, if he gives credit to the wife even for necessaries, the husband is not liable. McCutchen v. McGahay, 11 Johns., 281; Longworth v. Hackman, 12 Mad., 144. One or .two other instuctions were given, to the effect that the husband would be liable after the elopement of his wife, until the tradesman was informed of the elopement. We do not so understand the law. It is the duty of the tradesman to satisfy himself that the wife, at the time of the sale of the goods, is living with her husband; and if she is not, he sells to her at his peril. The judgment of the circuit court is reversed, with costs, and a venire de novo awarded.