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And ordinarily he will be presumed to as-
sent to her making such purchases as in
the conduct of the domestic concerns are
proper for her management and supervi-
sion ; but he is at liberty to withhold such
assent and destroy such presumption by
an express prohibition ; and if he do so,
no one, having notice thereof, may trust
the wife in reliance upon his credit, unless
the husband so neglects his own duty that
supplies become absolutely necessary ac-
cording to their condition. In the pres-
ent case, therefore, the sale of the goods
being proved, or not being denied by the
defendant, the burden of proof was upon
the defendant to show that the credit was
given against his express dissent, and no-
tice thereof to the plaintiffs. This being
proved, the burden was upon the plaintiffs
to show that the defendant did not suitably
provide for his family according to his and
their condition. Of that the plaintiffs
were not to be the judges except at the
risk of establishing it by proof, and of
that they offered no testimony whatever ;
but on the trial objected to the defendant's
proving affirmatively that he did so, and
the justice excluded evidence offered by
him tending to show in what mode, and
in part to what extent, that provision was
made. The defendant was not bound to
show affirmatively that he did so provide,
and yet, so far as he appears to have been
permitted, his testimony went to show that
he did make suitable provision. Nor is it
enough that the articles sold are in their
nature and description necessary and suit-
able for the use of the wife and family.
If they were not so there would be no pre-
sumption of the husband's assent to the
purchase in any case. It is indispensable,



where the vendor has been forbidden to
sell upon the wife's request on the hus-
band's credit, that the vendor show not
only that the goods were in their natiire
suitable and necessary, but that the hus-
band neglected his duty to provide sup-
plies, and that for that reason they were
necessary. These rules are elementary.
jModern leoislation, in preserving to the
wife all her own property, has taken away
some of the grounds upon which the duty
of the husband was placed by the common
law ; but it has not yet gone so far as to
invest the wife with a discretion which
the husband cannot control, and enable
her to spend his property or involve him
in debt against his will." This sound ex-
position of the law has been followed in
this country with even greater uniformity
than it has been iu England, where, as
will be seen from the authorities we cite,
some of the decisions cannot be supported,
and have been in effect overruled by some
of the latest cases. See, further, Mott v.
Comstock, 8 Wend. 544; Kimball v. Keyes,
11 Wend. 33 ; Blowers v. Sturtevant, 4
Denio, 49; Oilman v. Andrus, 28 Vt. 241;
Waithman v. Wakefield, 1 Camp. 121, per
Lord EUenborough ; Sawyer v. Cutting,
23 Vt. 486 ; Benjamin v. Benjamin, Is
Conn. 347 ; Felker v. Emerson, 16 Vt.
653 ; Church v. Landers, 10 Wend. 79 ;
Rotch V. Mills, 2 Conn. 638 ; Hughes v.
Chadwick, 6 Ala. 651. In Savage v.
Davis, 18 Wis. 608, the law is succinctly
laid down tlius : —

" A wife may undoubtedly act as the
agent of her husband, and in that char-
acter transact his business, control his
property, and make contracts in respect
to it which will bind him. This agency,
its nature and extent, and whether it in-
cludes the particular contract, may, as in
other cases, be infeiTed from a variety of
circumstances. It is a question for the
jury to determine from all the evidence,
whether the wife had the authority to do
the act or make the contract in question,
or whether her act, unauthorized at the
time of its performance, was rendered
valid by a subsequent ratification by the
husband. In the management of house-
hold affairs it is said that it will be pre-
sumed, until the contrary ajipears, that
she acts as the agent of her husband
(Pickering v. Pickering, 6 N. H. 120) ;
but her ])ower to bind her husband by her
contracts rests ujion the sole ground of
agency, she having as wife no original
and inherent power to bind him by any
contract made by her." Leeds v. Vail,
15 Pa. St. 185 ; Freestone v. Butcher, 9



154



COMMENTARIES ON SALES.



[book II.



if there be express authority, there is no room for doubt ; and if
the authority is to be implied, the presumptions which may be ad-



C. & p. 643 ; Day v. Burnhara, 36 Vt. 37 ;
Johnston V. Pike, 14 La. Ann. 731 ; Mor-
gan V. Hughes, 20 Tex. 141 ; Furlong v.
Hysoni, 35 Me. 332 ; Etherington v.
Parrot, 1 Salk. 118 ; McC'utehen v. Mc
Gahay, 11 Johns. 281. The hiw as laid
down in Holt v. Brien, 4 B. & Aid. 252,
was followed in Hurshaw v. Merryman,
18 Mo. 106, that if the husband makes a
reasonable allowance to the wife for neces-
saries, during his temporary absence, and
a tradesman, with notice of this, supplies
her with goods, the husband is not liable
unless the tradesman can show that the
allowance was not supplied. See further,
as to the husband's liabilities on his wife's
contracts, Sterling v. Potts, 5 N. J. L.
773 ; Williams v. Coward, 1 Grant (Pa.)
Cas. 21.

In Theriott v. Bagioli, 9 Bosw. (N. Y. )
578, the plaintiffs sold goods to the de-
fendant's wife, after having been forbid-
den by the husband to do so. The court
held that the plaintiffs could not re-
cover, unless under a subsequent prom-
ise to pay, or that they made it appear
that the articles furnished were necessary
and suitable to her condition in life, and
that she was not otherwise provided for
by her husband. The husband is bound
to provide his wife with necessaries suit-
able to her situation and his condition in
life. He is bound by her contracts for
ordinary purchases, from a presumed as-
sent on his part ; but if his dissent be
previously made known, the presumption
of his assent is rebutted, and he is not
liable, unless the seller shows the abso-
lute necessity of the purchase for her
comfort. Etherington v. Parrot, 1 Salk.
118. Outside of the matter of necessa-
ries, a wife, as such, has no original or
inherent power to make any contract which
is obligatory on her husband. No such
right arises from the marital relation be-
tween them. If, therefore, she possesses
a power in any case to bind him, by her
contracts made on his behalf, it must be
by virtue of an authority derived from
him, and founded on his assent ; although
such assent may be precedent or subse-
• juent, and express or implied. Where
such authority is conferred, the relation
between them and the consequences of
that relation are analogous to those in
the ordinary case of principal and agent.
And that she has the capacity to be consti-
tuted, by the husband, his agent, and to
act as such equally with any other person,
there is no doubt. Fitz. Nat. Brev. 120
G. ; Vin. Abr. tit. Baro7i tfc Feme, E.
A. ; 1 Bac. Ab. 499 ; Bull. N . P. 136.



But, admitting the correctness of these
principles, it was held in Benjamin v.
Benjamin, 15 Conn. 347, in a weU-con-
sidered judgment, that, as a presump-
tion arising from the state of society, the
law will, in some cases, presume the wife
to be the agent of the husband, when no
such presumption would exist as to an-
other person ; and also will, in .some cases,
imply a larger authority to the wife than
to an ordinary agent ; and this perhaps,
whether the husband be absent from home
or not ; and that, in other cases, where he
he is absent, a presumption would arise
that his wife has authority to act in his
behalf, which would not exist if he were
at home ; these inferences being founded
on the fact that it is usual and customary
to permit the wife to act in such cases.
See Meader v. Page, 39 Vt. 306, where
the wife's agency was sustained ; Anon.,
1 Str. 527 ; Church v. Lander-s, 10 Wend.
79 ; Spencer v. Tisne, Addis. R. 316.
But this does not sanction the doctrine
that the wife, whether the hu.sband is
abi'oad or at home, is presumed to be the
agent of her husband generally, cr to be
entrusted with any other authority as to
his affairs, than that which it is usual and
customary to confer upon, the wife. It
would be not only unreasonable, and, as
it respects the husband's interests, un-
safe ; but it would be going beyond what
could fairly be presumed to be his inten-
tion, to extend the powers of the wife by
implication or presumption farther thaa
this principle warrants. Hence, in Benja-
min V. Benjamin, 15 Conn. 347, it was held,
that the husband was not bound by a con-
tract made by his wife, not for necessa-
ries, and not within the scope of her
agency, in respect to a matter that would
only belong to his general agent, or to one
to whom a special authority was given.
But, as frequently is the case where a
married woman, by the cruelty of her
husband is driven from his home without
means of support, — a subject which we
fully consider in the next section of this
Part, — the husband may be liable for
necessaries furnished the wife, in certain
cases, though the existence of an agency
or assent, express or implied in fact, is
wholly disproved by the evidence ; and
this, upon the ground of agency implied
in law, though there can be none pre-
sumed in fact. It is a settleil principle
in the law of husband and wife, that, by
virtue of the marital relation, and in con-
sequence of the obligations assumed by
him upon marriage, the husband is legally
bound for the supply of necessaries to the



PART III.] MARRIED WOMEN. 155

vanced on one side may be rebutted on the other ; and although
there is a presumption that a woman living with a man and rep-
resented by him to be his wife, has his authority to bind him by
her contract for articles suitable to that station which he per-
mits her to assume, still this presumption is always open to be
rebutted.^

But this does not militate against the rule that the husband, as
well as every principal, is concluded from denying that the agent
had such authority as he was held out by his principal to liave, in
such a manner as to raise a belief in such authority, acted on in
making the contract sought to be enforced. On these principles, it
was held that a verdict for necessaries suitable to tlie estate and
degree of the husband, obtained from the plaintiffs by the wife of
the defendant without his authority and contrary to his order,
could not be supported.^ This case has been since repeatedly fol-
lowed and approved, and it seems in harmony with all the well-
decided cases on the subject. We follow up the consideration of
the subject under the light cast upon it by the latest cases.

Where the husband neither does nor assents to any act to show
that he has held out his wife as his agent to pledge his credit for
goods supplied on her order, the question whether she bears that
character must be examined upon the circumstances of the case.
That question is one of fact. The management of the husband's
house would raise a presumption of agency as to matters neces-
sarily connected with that management, which might not be got
rid of by a mere private arrangement between husband and Avife ;
otherwise where such management did not exist.

Thus, A. was the manager of a limited company's hotel at Brad-
ford, where his wife acted as manageress. They cohabited. He
made his wife an allowance for clothes, but forbade her to pledge
his credit for them. She purchased clothes in London, the bills

wife, so long as she does not violate her express or implied, yet this assent may be
duty as wife ; that is to say, so long as inferred from circumstances, such as the
she is not guilty of adultery or elopement, necessity the wife stood in for them, and
The husband may discharge this obliga- the relative situation of the parties, as
tion by supplying her with necessaries connected with the treatment of each
himself or by his agents, or giving her an other ; the question of necessaries being
adequate allowance in money, and then he a relative fact, depending upon the stand-
is not liable to a tradesman who, without ing and circumstances of the party. Shel-
his authority, furnishes her with necessa- ton v. Hoadley, 1.5 Conn. 535 ; Ford v.
ries ; but if he does not himself provide Fothergill, 1 P'sp. 211. See Segelbaum
for her support, he is legally liable for v. Ensniinger, 117 Pa. St. 248, where the
necessaries furnished to her by tradesmen, wife's purchase.s, against the husband's
even though against his orders. Crom- notice, were held not to bind hiui.
well V. Benjamin, 41 Barb. 558. And i JIanby y. Scott, 1 Sid. 109; Ethering-
whether the husband is liable for services ton v. Parrot, 2 Ld. liaym. 1006 ; 1 Salk.
rendered his wife, or goods sup])lied lo 118; Jolly?;, Rees, 15 C. B. N. s. 628.
her, though the general rule is that the 2 j^Hy v, Rees, 15 C. B. N. s. 628.
husband is not liable without his assent,



156



COMMENTARIES ON SALES.



[book II.



for which were made out in her name and were paid bj her. She
afterwards incurred with the same tradesmen a debt for clothes,
payment for which was demanded from the husband, with whom,
previously, they had had no communication. On the trial before
Bowen, J., the jury found that, at the time the goods were ordered,
the defendant had withdrawn from his wife authority to pledge
his credit, and had forbidden her to pledge it. Judgment having
been entered, accordingly, for the defendant, the Queen's Bench
Division refused a new trial. On appeal to the Court of Appeals,
the lords justices, following and adopting the decision in Jolly v.
Rees,^ affirmed the ruling in the court below.^ The House of
Lords sustained the judgment.^



1 15 C. B. N. s. 628 ; 33 L. J. C. P.
177.

2 Debenham v. Mellon, 5 Q. B. D. 394.

3 Ibid., 6 App. Cas. 24. The law on
the question is thus laid down by Lord
Blackburn in his judgment : " I premise,
as did the majority of the court in Jolly v.
Eees (15 C. B. N. s. 628 ; 33 L. J. C. P.
177), by saying that no question arises
here as to what would be the case if the
wife had been left destitute, and had not
been allowed what was proper for her
estate aud condition. If there had been
desertion and cruelty, so that she had not
been supplied with what was proper, no
question arises here as to whether she
would not have had authority to pledge
her husband's credit to get such things.
Tliat is not the case here at all. This is
simply a case where a husband is living
with his wife, though they are not keeping
up any household establishment ; and he
in fact makes her an allowance which
both husband and wife seemed to think,
so far as one can judge from appearances,
would be sufficient to enable her to supply
herself with all necessary clothes. She
did get clothes, and there was evidence
which sartisfied the jury that the husband
really and truly told her that she was not
to pledge his credit, and that she had as-
sented. The question comes to be, first,
had she, from her position as wife, author-
ity to pledge her husband's credit, although
the husband had revoked that authority ?
I gi-ant that the fact of a man living with
his wife, frequently, and indeed always,
does afford evidence that he entrusts her
with such authorities as are commonly
and ordinarily given by husband to wife.
I should say that it might be a matter of
doubt whether it is so perfectly certain
that the articles supplied by milliners are
always to be procured upon the credit of
the husband, so as to make that a. primd
facie part of the authority. But I will
assume that it would be so. In the



ordinary case of the management of a
household the wife is the manager of the
household, and would necessarily get
short and reasonable credit on butchers'
and bakers' bills, and such things ; and
for those .she would have authority to
pledge the credit of the husband. I think
that if the husband and wife are living
together, that is a presumption of fact
from which the jury may infer that the
husband really did give his wife such
authority. But even then, I do not think
the authority would arise, so long as he
supplied her with the means of procuring
the articles otherwise. But that is not
the present question, which is this : had
the wife a mandate to order the clothes
which it would be proper for her in her
station in life to have, though the husband
had forbidden her to pledge his credit,
and had given her money to buy clothes ?
I think, for the reasons given by the ma-
jority of the court in Jolly i-. Rees (15
C. B. N. s. 628; 33 L. J. C. P. 177), and
also by the judges in the Court of Appeal
in this case, that there is no authority
and no principle for saying that the wife
had authority to pledge her husband's
credit. I quite agree that if the husband
knew that the wife had got credit, if he
had allowed the tradesmen to suppose
that he himself had sanctioned the trans-
actions, by paying them or in other ways,
it might very well be argued that he would
have given such evidence of authority
that if he did revoke it he would be bound
to give notice of the revocation to the
tradesmen and to all who had acted upon
the faith of his authority and sanction.
That would be the general rule, for where
an agent is clothed with an authoritj', and
afterwards that authority is revoked, un-
less that revocation has been made known
to those who have dealt with him, thej'
would be entitled to say, ' the principal is
precluded from denying that that authority
continued to exist, which he had led us



PART III.] MARRIED WOMEN. 157

The plaintiff sued the defendant for the price of goods supplied
to the defendant's wife. The defendant, at the time the goods
were supplied, was a clerk at X400 a year ; living in a house the
rent of which was £70 per annum ; having two children, and
keeping three servants ; the wife having a separate income of .£90
a year. The goods, though luxuries, were found by the jury to be
suitable and proper to the wife's condition. The defendant had
no knowledge that his wife was purchasing the goods, and swore
that he had never bought any goods at the plaintiff's shop on
credit; and that he had never authorized his wife to pledge his
credit, but, on the contrary, had expressly desired her not to do
so. Two successive juries gave verdicts for the plaintiff. In
leaving the case to the latter of the two juries, the judge (Byles,
J.) said : " For myself, I certainly had thought, but erroneously,
that a tradesman was not bound by a limitation of the ordinary
authority between husband and wife unknown to him. But the
Court of Common Pleas has held a contrary opinion ; ^ and the law
is, as I understand it, that even if these things were all of them
necessary, yet if the wife in point of fact, although the tradesman
did not know it, was prohibited by her husband from incurring
these or any other debts, the plaintiff cannot recover." On mo-
tion to enter a nonsuit, the principles governing the case were
thus laid down : ^ —

" In this case the wife eloped from her husband, and then
he for the first time discovered that she had been professing
to pledge his credit for things which he never in any sense
authorized her to purchase, and which he never before saw or
heard of. If he is bound to pay for those articles it must be be-
cause the law infers from the relation of husband and wife some
authority in the wife to order them. What the law does infer is
that the wife has authority to contract for things that are really

to believe, as reasonable people, did for- think that when husband and wife are
merly exist.' Now there may be many cases living together, it is open to the husband
in which the husband has so sanctioned to prove, if he can, the fact that the
his wife's pledging his credit, but there is authority does not exist, it being a ques-
iiot any such case here. The case in Ire- tion for the jury whether a bcmd fide
land to which we have been referred, authority did or did not exist. This is
seems, as far as I could see by a slight not a case of withdrawing authority once
glance, to be a case where the husband given. The question is whether the plain-
had assented to the contracts in such a tiffs, who had never dealt with the husband
waj' that he could not deny them after- before, were entitled to assume that there
wards. With that we have nothing at pres- was such an authority to tlie wife ini])lied
ent to do. But I cannot agree with my in the mere fact that the wife was living
brother Byles that there is any authority with her husband ; and I think the law is
established by the cases that the fact that not so." See Moylan v. Nolan, 17 Ir. C.
a wife is living with a husband, alone en- L. R. 427; the Irish case referred to above,
titles the tradesmen to presume that the i In .Jolly v. Wees, 15 C. B. N. S. 628 ;
husband has given an authority so as to 33 L. J. C. P. 177.
preclude the husband from denying it. I 2 p^j- Willes, J., at p. 42.



158



COMMENTARIES ON SALES.



[book II.



necessary and suitable to the style in which the husband chooses
to live, in so far as the articles fall fairly within the domestic
department which is ordinarily confided to the management of
the wife. And it is incumbent on the tradesman who relies upon
the goods coming within that description to prove affirmatively
that they do so. The burden of proof lies on him. He must
show, not that they must have been such articles as come within
that implied authority, but so strong a probability that they were
as to induce any reasonable mind to infer that the wife was acting
under the authority of her husband. It is not enough, where the
burthen of proof lies on the plaintiff, for him to prove facts which are
equally consistent with the affirmative or the negative of the proposi-
tions sought to be made out." A nonsuit was entered accordingly.^



1 Phillipson v. Hayter,L. R. 6 C. P. 38.

And see Freestone v. Butcher, 9 C. & P.

643 ; Kelly v. Phillips, 40 Barb. 390 ;

Cromwell v. Benjamin, 41 Barb. 558 ;

Lane v. Ironmonger, 13 M. & W. 368 ;

Ruddock V. Marsh, 1 H. & N. 601 ; Manby

V. Scott, Sid. 109 ; 1 Lev. 4 ; Dyer v.

East, 1 Mod. 9 ; Tod v. Stokes, 12 Mod.

244 ; Etherington v. Parrot, 2 Ld. Raym.

1006 ; Waithman v. Wakefield, 1 Camp.

120 ; Bolton v. Prentice, 2 Str. 1214 ;

Holt V. Brien, 4 B. & Aid. 252 ; Montague

V. Benedict, 3 B. & C. 631 ; Ryan v.

Sams, 12 Q. B. 460 ; Read v. Legard, 6 Ex.

636 ; Johnston v. Sumner, 3 H. & N. 261 ;

Reid V. Teakle, 13 C. B. 627 ; Munro v.

De Chemant, 4 Camp. 215 ; Atkyns v.

Pearce, 2 C. B. N. s. 763 ; Atkins v. Car-
wood, 7 C. & P. 506 ; Mizen v. Pick, 3
M. & W. 481 ; Richardson v. Du Bois,
L. R. 5 Q. B. 51 ; Eastland v. Burchell,
3 Q. B. D. 432 ; Shoolbred v. Baker, 16
L. T. 1357 ; Moylan v. Nolau, 17 Jr. C.
L. R. 427.

By section 2214 of the Iowa Code it is
provided " that expenses of the family are
chargeable upon the property of both hus-
band and wife, or either of them, and in
relation thereto they may be sued jointly
or separately." In Devendorf v. Emerson,
66 Iowa, 698, the defendant, in writing,
forbade plaintiffs to sell goods to his wife
on his account, the husband having no
account with the plaintiffs at the time.
Plaintiff's thereafter sold to defendant's
wife family supplies on the husband's ac-
count, and the same were used as such,
and there was no evidence that there was
a necessity for such purchase by the wife
by failure of the husband to furnish .said
supplies. The court held, that while the
section of the Code is a necessary protec-
tion to merchants who in good faith fur-
nish family supplies, and authorizes them
to look to the husband or wife for pay-



ment, without any investigation as to
which of them is the owner of the family
property ; yet as the plaintiffs sold the
goods to the wife, against his written pro-
test, and knowing that the husband was
supplying his family in his own way, the
section did not take away the right of a
provident husband to supply his family
with a support and maintenance in his
own way, in cases where the family de-
pends upon him for support ; and that,
as he furnished the family supplies, the
statute did not deprive him of the right to
make the necessary purchases from such
persons as he saw fit. The legal impli-
cation is that purchases of necessaries,
although made by the wife, are on account
of the husband ; and before the wife can
be charged with liability, this implication
must be overcome by proof that by her ex-
press contract, or by circumstances other
than the purchase of the goods by her,



Online LibraryJeremiah TravisCommentaries on the law of sales and collateral subjects (Volume 1) → online text (page 35 of 114)