Opinion
No. 30329.
January 9, 1933.
1. HUSBAND AND WIFE.
Where evidence established that goods were furnished to wife under express contract between seller and wife, and solely on her credit, wife was personally liable (Code 1930, section 1940).
2. HUSBAND AND WIFE. Where husband fails to supply wife with necessities convenient and suitable to station in life, husband is liable therefor.
Husband is liable for necessaries furnished to the wife on his failure to supply them, because obligation assumed by husband on marriage, and failure to supply necessities, gives the wife an implied agency to create the debt therefor as against the husband.
3. HUSBAND AND WIFE.
Where goods were furnished to wife solely on her credit, and wife did not create debt impliedly as husband's agent, husband was not liable (Code 1930, section 1940).
4. HUSBAND AND WIFE.
Where it was not shown that husband's allowance to wife was not wholly adequate to her proper support, husband was not liable on wife's account for goods furnished (Code 1930, section 1940).
5. HUSBAND AND WIFE.
Husband does not become surety where wife defaults in performance of her contracts (Code 1930, section 1940).
APPEAL from circuit court of Forrest county. HON.W.J. PACK, Judge.
E.F. Coleman, of Purvis, for appellant.
As the husband has a right primarily to say what are necessaries with respect to his wife, and who shall furnish them, he cannot ordinarily be held liable for articles purchased by his wife when he has not neglected or refused to furnish her with suitable support. So a person seeking to charge a man for necessaries supplied to the wife must show not only that the articles supplied were necessaries, but also that the husband has neglected to supply them, the presumption being that he is not liable.
13 R.C.L., page 1198, section 230.
Though there are decisions to the contrary, the better view seems to be that in order to render the husband liable for necessaries furnished the wife they must have been furnished on his credit. As has been said if a tradesman furnished goods to a wife, and gives the credit to her, the husband is not liable, though she was at the time living with him, and a fortiorari he is not liable if they were living apart. Whether credit in any case is given to the woman or her husband is a question of fact to be determined by the jury.
13 R.C.L., page 1200, section 233.
The evidence fails to show that the articles purchased were necessities.
If the articles were charged to the wife she is then responsible for them.
Galtney v. Wood, 115 So. 117.
The common-law liability of the husband for the necessaries furnished to the wife and members of the family is founded upon the assumption that the credit in such case was extended to the husband, and not to the wife, and the purchases so made on credit were so made with the implied assent of the husband. The common-law liability does not exist where the facts show that the credit was given to the wife and the goods charged to her and not to the husband, and that the goods were not sold to the wife upon the implied assent of the husband that they were to be charged to him.
Tullis v. Nachman Meetrief, 107 So. 244.
Dudley W. Conner, of Hattiesburg, for appellee.
Section 1940 of the Mississippi Code of 1930 makes some changes and alterations in the common-law rule of the disabilities of coverture.
It is true that married women have been emancipated from the disability of coverture in this state, but it is likewise true that it is the duty of a husband, and he is primarily bound, to furnish necessities to his wife, such as the items sued for herein. It is a principal of law growing out of the marital relation, as a consequence of the obligation assumed by the husband upon marriage, that he shall supply the wife with all necessaries convenient and suitable to their station in life. If the husband neglects to provide these necessaries, the wife may make the purchases, and, though he may dissent, he shall nevertheless be liable therefor. The common law still obtains in this state, and, notwithstanding the removal of the disability of coverture and the grant of sufferage to the wife we are still compelled to hold that the common-law rule obtains.
Galtney v. Woods, 115 So. 117; Woolbert v. Lee Lumber Company, 117 So. 354.
The appellee, the Davidson Company, filed its sworn itemized account against Mrs. J.A. Skehan in the county court, and by its declaration sued J.A. Skehan, the husband, and Mrs. J.A. Skehan for the balance due on the account, seventy-nine dollars and ninety-eight cents, alleging that the husband was liable therefore because the goods furnished to the wife were necessities chargeable against the husband on account of the marital relation existing between them. The county judge rendered a judgment for the amount of the account, and on appeal to the circuit court that judgment was affirmed, and the husband, J.A. Skehan, prosecutes an appeal here.
The account filed is against Mrs. J.A. Skehan, and the first charge thereon is dated August 16, 1926, and continued through the years, the last item charged being in March, 1928. There were numerous credits of payment of cash on the account.
The wife, introduced as an adverse witness, swore that the account against her was correct; that her husband did not purchase articles for her, she made her own purchases; and that he allowed her from fifty to seventy-five dollars per month for her support. The record fairly demonstrates that they are living together and that there has been no abandonment and no failure to pay over to her the cash allowance. She further testified that she opened the account with this company twelve or fourteen years ago, gave her own references, and established her own charge account there; and that her husband did not know she had contracted the debt until this suit was brought against him There was no effort to show the station of life of the parties and to show any express contract on the part of the husband. We think the evidence fairly shows that there was an express contract between the Davidson Company and Mrs. Skehan, and that the goods were furnished to her solely and alone upon her own credit. The judgment against Mrs. Skehan was correct, and there is no appeal therefrom.
By section 1940, Code of 1930, which has been in our statutes since the Code of 1880, a married woman is fully emancipated from the disability of coverture and has full capacity to make contracts as if she were not married. It is the law, however, that, where the husband fails to supply the wife with the necessities convenient and suitable to their station in life, the husband is liable therefor, because the obligation assumed by him upon marriage and the failure to supply the necessities is an implied agency of the wife to create the debt as against the husband. See Dunbar v. Meyer, 43 Miss. 679; East v. King, 77 Miss. 738, 27 So. 608; Galtney et al. v. Wood, 149 Miss. 56, 115 So. 117. Applying the principle of law announced in these several decisions of this court, it is clear from the facts of the case at bar that the Davidson Company furnished goods for many years to the wife on the sole credit extended to her, and that she created the debt against herself and not impliedly as the agent of the husband. Hence, he would not be liable for the debt. See 13 R.C.L., p. 1180, section 209.
In addition to the fact that the goods were furnished Mrs. Skehan solely and alone upon her own credit for many years, and there was neither express nor implied contract on the part of the husband, it is not shown in this case that the allowance made by the husband to the wife was not wholly adequate to her support in the station of life in which they lived. Of course, the mere fact that the account was charged to the wife, of itself, would not relieve the husband of his common-law obligation to support his wife, but the facts of this case show that no such obligation existed. The husband does not become surety in case the wife defaults in the performance of her own contract. The husband is not liable on the facts of this case.
Reversed and judgment here for the appellant.