This case involves the liability of a husband for goods sold and charged to his wife without his consent. He did not deny his legal obligation to supply her with necessaries, but defended on the ground that the purchases were not necessaries; that he had furnished her with sufficient funds for her requirements; that he had forbidden her to trade with the plaintiff and the plaintiff to credit her; that he had directed her to trade at Cook's store and had arranged credit for her there, and that the goods were sold to her by plaintiff solely on her own credit. The jury found in favor of plaintiff.
The husband insists here (1) that the one instruction given was erroneous; (2) that the credit was extended to the wife alone; and (3) that he had made ample provision for her to secure merchandise at Cook's.
(1) We have carefully examined the instruction and find that it is very favorable instead of prejudicial to the husband.
(2) The record does not bear out the contention that credit was furnished to the wife alone. It is true that in answer to the question, "On whose credit did you sell these goods?" the manager of plaintiff replied, "On Mrs. Lilly's", but he immediately qualified that statement by saying "I would say *Page 128 Mr. Lilly's too, we knew that Mr. Lilly would be responsible for the debt if she did not pay it." The mere fact that the goods were charged to the wife does not of itself indicate that credit was extended alone to her. 15 A. E. Ency. Law, 892; 30 C. J. 600-1; Schouler Domestic Relations, sec. 64. It is a question for the jury. See the well considered case ofNoel v. O'Neill, 128 Md. 202.
(3) On the third proposition the husband testified that he had arranged with the Cook store to supply the wife with whatever merchandise she needed. Mr. Cook confirmed the arrangement and stated that he kept a complete stock of the class of merchandise which the wife purchased from the plaintiff, and that if he did not have the articles in stock which the wife wanted he would have ordered them for her. The wife admits the arrangement with Mr. Cook, but stated that he carried only a cheap stock, that she bought what she could from him; that he did not have the items which she purchased from plaintiff; that Mr. Cook had offered to order her a coat (which was one of the main purchases at plaintiff's store), that she told him to let her know if anything came in which she could wear, but gave him no definite order; that he did not let her know, and she could not remember if she ever made a further examination of his stock as to the coat.
In a full note to McCreery v. Martin, 84 N.J.L. 236, appearing in Anno. Cas., 1915-A, p. 6, is a clear statement of the law in this respect. "There is no dispute as to the broad rule that the husband while bound to furnish his wife necessaries is entitled to dictate the source from which they shall be procured and the manner in which they shall be purchased." See also Schouler, supra, sec. 85.
Under that rule Judge LITZ and myself are of the opinion that the failure of Cook to keep in stock, merchandise satisfactory to the wife, did not put the husband in default, provided Cook could have procured same within a reasonable time. We think the wife should have permitted Cook to make a special order subject to her approval, or at least taken up the matter with the husband, before she purchased elsewhere. The majority of the court are of opinion however, that under all the circumstances in the case her attempt to secure her *Page 129 requirements at Cook's was a substantial compliance with the husband's directions, and that the inadequacy of Cook's stock of merchandise for her purposes, was sufficient warrant for her to trade elsewhere.
Counsel also contend that the husband had forbidden plaintiff to credit the wife, and for that reason he is not responsible for this debt. Counsel overlook the evidence of plaintiff's manager denying that the husband had ever so interdicted plaintiff. The verdict of the jury resolved the issue on this as well as on all other controverted questions in favor of plaintiff.
The judgment of the lower court is affirmed.
Affirmed.