Brown v. Worden

Lvon, J. Nothing is alleged in the complaint to show that the defendant is liable for the articles therein mentioned, furnished by the plaintiff to"' the defendant’s wife, except that they were furnished at her request, and were necessaries. The claim that the defendant is liable to pay for such articles depends upon these averments alone. A husband is not liable, ipso facto, for necessaries furnished his wife without his consent. It is only under special circumstances and conditions that he is liable therefor. Sturtevant v. Starin, 19 Wis., 268; Warner v. Heiden, 28 id., 517; [434] Bach v. Parmely, 35 id., 238. Hence, when a third person gives a wife credit for necessaries, there can be no presumption that the husband is liable to pay for them-. The facts which render him liable must necessarily be averred and proved, as all facts must upon which the cause of action depends. In this complaint no such facts are averred. Every averment which it contains may be true, and still the plaintiff may not be entitled to recover. The complaint fails, therefore, to state facts sufficient to constitute a cause of action, and the objection made at the commencement of the trial to the admission of any testimony under it, for that reason, should have been sustained. Had it been alleged in the complaint, as it was in Sturtevant v. Starin, supra, that the articles mentioned therein were sold or furnished to the defendant, a different question would be presented. In such case, the question of the authority or agency of the wife might arise, and it is probable that evidence would be admissible, under such a complaint, to show that the wife was the authorized agent of her husband in the transaction. But there would be no presumption that she was such agent; for a wife is not ipso facto the agent of her husband. Savage v. Davis, 18 Wis., 608. Whether the obligation of the husband to pay for necessaries furnished his wife without his consent is placed upon the ground that she is his agent for the purpose of procuring them, or solely upon the duty which grows out of the marital relation (Bach v. Parmely, supra), the result is the same. In either event, the complaint is barren pf averment showing that the defendant is liable in this action. By the Oou/rt. — The judgment is reversed, and the cause remanded for further proceedings according to law.