Hickey v. Lundy

Brooke, J. (after stating the facts). Plaintiff assigns six different reasons why she is entitled to a reversal of the judgment against her: First. That under the notice attached to defendant’s plea, under subdivision (e) of Circuit Court Rule No. 7, defendant’s legal liability is admitted. Second. It was a question for the jury whether the wife was the agent of the husband in doing what she did [339] towards the purchase of the goods, and as to whether they were necessaries. Third. Defendant is liable to plaintiff because of his subsequent ratification of his wife’s acts, which is a question for the jury. Fourth. Defendant is liable on his express contract to pay for the goods, which was a question for the jury. Fifth. If no express contract is proven, then defendant is liable on an implied contract to pay for the goods, which is a question for the jury. Sixth. The court erred in his rulings on the admission and rejection of testimony. In discussing the first question raised, it is sufficient to say that defendant, upon learning of the existence of Exhibit A, promptly amended his plea as above set forth, and the trial thereafter proceeded both in the justice and circuit courts upon the amended rather than upon the original notice. In the circuit court, plaintiff offered testimony to establish the liability of defendant. She did not rely upon the original notice under the plea as admitting such liability. Counsel for plaintiff seem to have proceeded upon the theory that under the amended notice defendant denied all liability. The second, third, fourth, and fifth grounds urged may be treated together. In each it is assumed that there was a contract of sale and purchase at least between plaintiff and defendant’s wife. It seems to us plain there was no such contract. The contract was in writing. It is unambiguous and provides for a stipulated rental for the property in question. It was further specially pleaded by plaintiff as evidencing her right to recover. There being an express contract, there is no room left for implication. We find no testimony in the record which tends to prove that in executing said contract the wife acted as agent for the husband or that the husband ever ratified her actions in the premises, and it is not claimed that he thereafter purchased the goods himself. The liability of the husband for necessaries purchased by the wife is not questioned. The only testimony in this [340] record, however, upon the question of whether or not the goods were necessaries is to the effect that they were not necessaries and it affirmatively appears that they were never purchased. A verdict having been properly directed in favor of defendant upon facts which are not in dispute, it is not necessary to consider the last ground urged for reversal. The judgment is affirmed. Moore, C. J., and Steers, McAlvay, and Bird, JJ., concurred.