Keller v. Phillips

Full title: SOLOMON KELLER et al., Appellants, v . HENRY L. PHILLIPS, Respondent

Court: Court of Appeals of the State of New York

Date published: Jun 1, 1868

39 N.Y. 351 (N.Y. 1868)

Opinion

June Term, 1868

J.E. Dewey, for the appellant.

S. Hand, for the respondent.

WOODRUFF, J.

The defendant was liable for such part of the goods mentioned in the plaintiffs' bill of particulars, as were purchased before the defendant gave notice, forbidding them to sell to his wife and family on credit. In addition to such assent as would be presumed from the nature of the purchases, and their actual use in his family, there was the authority resulting from some four or five years' dealings by the plaintiffs with the wife, and the payment of the bills by him, in direct sanction of the sales. This was ample to warrant a continuance of the like dealings, and bound the defendant to pay for the further purchases, independent of the question, how far, in the absence of such prior authority or sanction, the husband is bound by the contracts of his wife, in the purchase of goods for domestic use.

There was conflict in the testimony, as to the time when the notice was given, the defendant fixing a date prior to the sale of any of the goods in question in the action, and the plaintiff Keller, and the clerk Snell, fixing a date, prior to which two thirds of the goods had been sold and delivered. Had the plaintiffs, under such conflicting evidence, recovered for the goods sold prior to the payment of the defendant's note, on which occasion the plaintiff says the prohibition was given, it would show, that, in respect to the time when the notice was given, which was set up in the defendant's answer as his sole defense, the recollection of the plaintiff and the clerk was deemed by the jury more reliable than the recollection of the defendant, and there could be no reason for disturbing the judgment.

But the recovery was also had for the goods sold after (according to the testimony of the plaintiff and the clerk, as well as that of the defendant) the notice was actually given. And, that the conversation did take place in which the defendant forbade the plaintiffs to sell goods to his wife upon credit, and declared in terms quite emphatic, though profane and indecent, that he would not pay for goods so sold, is not in doubt; it is sworn to by both parties, as well as in substance by one other witness.

The rules of law relating to the power of the wife to bind her husband to payment for goods purchased by her for the use of herself and the family, are well settled. The husband is bound to provide for her and them whatever is necessary for their suitable clothing and maintenance, according to his and their situation and condition in life. And ordinarily, he will be presumed to assent to her making such purchases as, in the conduct of the domestic concerns, are proper for her management and supervision; 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 according to their condition.

In the present 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 notice 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 suitable for the use of the wife and family. If they were not so, there would be no presumption 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 husband's credit, that the vendor show, not only that the goods were in their nature suitable and necessary, but that the husband neglected his duty to provide supplies, and that, for that reason, they were necessary.

These rules are elementary. Modern legislation, 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. ( Mott v. Comstock, 8 Wend. 544; Kimball v. Keyes, 11 id. 33; 2 Sw. Dig. 31; 2 Kent's Com. 146; Blowers v. Sturtevant, 4 Denio, 49.)

It is suggested by counsel for the appellants, that the jury may have inferred, from the conversation testified to, that the defendant was not in earnest when he forbid the plaintiffs trusting his wife on his credit, that the plaintiffs did not think he was in earnest, and that the defendant knew that they did not think he was earnest. There was nothing in the conversation to warrant any such inference, and there was no room for speculation. On the contrary, no terms could be more explicit or more apparently sincere. True, the plaintiff Keller declared to him, that he would not refuse his wife any credit she asked for; but the defendant declared that he would not pay a cent of it. This declaration of the plaintiff Keller was either a rude and unwarrantable defiance of the husband, or an expression of an intention to sell upon the wife's credit; if the latter, he was at liberty so to sell, but such sales would not bind the husband.

It is also insisted, that, from the fact that a bill for a part of the goods was stated by the defendant to have been laid upon his lap in the store of one Norton, it might be inferred that he either never intended the notice or prohibition to be acted upon, or that he assented afterward to the sales made, and so practcially revoked it. Had the plaintiffs shown the circumstances under which this bill was laid upon the defendant's lap, or by whom it was placed there, or that the defendant was called upon to pay it, and either assented or did not dissent, or any thing in short, from which it could reasonably be inferred that the defendant accepted it as an account against him, there would be force in the argument, but the bald fact that the bill "was laid on his lap in Norton's store," without showing by whom, or what was said, or whether any one representing the plaintiffs was present to receive any assent or dissent, or how it came to be in Norton's store, or what was done with the bill thereafter, or even that the defendant retained it in his possession, warrants no inference at variance with his previous declared purpose.

For these reasons, the judgment of the General Term of the Supreme Court should be affirmed.

Judgment affirmed.