(concurring). Plaintiff sues the husband on a contract alleged to have been made by the wife for two months’ summer board for herself, the husband and four children.
• The error claimed lies in two rulings of the learned trial judge, one, to the effect that the husband was liable as matter of law, and the other, excluding evidence of any conversation between husband and wife in which he had assumed to limit her authority. In order to determine the correctness of the rulings which are challenged and to clarify the issues for the new trial about to be ordered, it is necessary to understand the basis of a husband’s liability.
It is well settled that a husband owes to his wife and children the duty of supporting them in a style commensurate with his position in life. DeBrauwere v. DeBrauwere, 203 N. Y. 460; Keller v. Phillips, 39 id. 351, 354. It follows that this duty cannot be discharged except by performance. Frank v. Carter, 219 N. Y. 35, 38. Therefore, if the objects contracted *359for by the wife lie within the category of what are usually, though perhaps not happily, designated as “ necessaries,” the sole defense which the husband may successfully interpose is that he has actually furnished them or the means to obtain them. Clearly also, the .wife’s authority to purchase necessaries must be coterminous with the husband’s duty, and cannot be limited by instructions to her or notice to the other contracting party. As is said by Devens, J., in Alley v. Winn, 134 Mass. 77, 79, she is authorized “ to bind him even against his will. His consent in such case is conclusively implied by reason of this relation.”
Much confusion has arisen from the use interchangeably of the phrases “ duty of the husband ” and “implied authority of the wife.” Where necessaries alone are concerned it is indifferent what phraseology is employed to describe the obligation since it is imposed by law, and to that extent the agency implied is one implied in law and should be clearly distinguished from an agency implied in fact. See Cromwell v. Benjamin, 41 Barb. 55. The latter generally arises out of the course of conduct of the husband in the maintenance of the ordinary household, and is governed by the common rules of agency. Of course, authority implied in fact is of the same weight and value- as that actually expressed. See Henry Co. v. Talcott, 175 N. Y. 385, 389. Where, however, authority either express or implied in fact is relied on, the question whether the husband has supplied the same or similar articles manifestly becomesimmaterial. On the other hand, the husband may successfully defend by proving a revocation of the authority,— which, however, would be effective only as to articles which are not necessaries.
There is another phase of implied agency, namely, apparent agency, or what is usually known as ‘ ‘ hold*360ing out ’ ’ the person contracting as having authority, —where the husband would be bound by way of estoppel. In such cases, knowledge of the husband’s previous course of conduct would have to be shown by the party seeking to recover, while revocation of the authority would have to be communicated to the intending vendor.
Whether the subject matter of the contract falls within the class of necessaries is to be determined according to the position and circumstances of the husband, and where the testimony permits divergent inferences it is .a question of fact for a jury. Wanamaker v. Weaver, 176 N. Y. 75; Bergh v. Warner, 47 Minn. 250.
In the foregoing discussion I have had in mind only those cases where husband and wife are living together in a household maintained by him. Somewhat different considerations, not relevant to the present case, apply where for any reason they are living apart.
While the opinions in the leading cases appear to be not entirely in harmony, this result is, I think, largely due to the fact that many of them contain expressions which go beyond the points actually decided. Thus, Wanamaher v. Weaver, 176 N. Y. 75, is frequently cited as authority for various propositions which are referred to merely arguendo, for at page 77 the court expressly says: ‘ ‘ The only question which we deem it necessary to consider is that raised by the exception to the charge as made, submitting to the jury the question as to whether the defendant’s wife was abundantly supplied with similar articles to those purchased at the time of the purchase, and, therefore, the articles were not necessary for her support and maintenance.”
Again, in Debenham v. Mellon, L. R. (5 Q. B. Div.) 394, on appeal, L. R. 6 App. Cas. 23 (cited in the Wanamaher case) emphasis is laid upon a determina*361tive consideration which affects the entire decision. Thus, the Lord Chancellor (Lord Selborne) in his opinion in the. House of Lords says at page 33: “ Now, my Lords, in the present ease, that ordinary state of circumstances which usually accompanies cohabitation where there is a house and an establishment, is entirely wanting. There was here no house, no establishment * * * which commonly raise the presumption.” The same distinction is pointed out by Lord Blackburn at page 35.
While less stress seems to be laid in the English cases upon the duty of the husband, the same result appears to be reached by way of reasoning from the usual custom in case of a household establishment. On the whole I think the principles which I have endeavored to formulate are fully supported by the authorities, and are considerably illuminated by the colloquys' between court and counsel in the English reports. See Jolly v. Rees, 15 C. B. (N. S.) 628; Debenham v. Mellon, supra; Morel Bros. & Co., Ltd., v. Westmoreland, L. R. (1 K. B. 1903) 64; Wanamaker v. Weaver, supra; Alley v. Winn, supra; McCreery & Co. v. Martin, 84 N. J. L. 626; Bergh v. Warner, supra; 1 Pars. Cont. 348-350.
We come then to the question of the correctness of the rulings of the learned judge below in the instant case.
It cannot, I think, be successfully contended that there was evidence sufficient to warrant a jury in finding that the wife had express authority of the husband to make the contract. On the contrary, the testimony indicated that the wife regarded her mission more as one of inquiry for the purpose of reporting to her husband than of attempting to close a contract on her own judgment. Nor was there evidence of the husband’s previous conduct sufficient to support *362the inference of a general authority implied; in fact consequently instructions given by the husband to his wife would have been wholly immaterial for the establishment of a defense. On the other hand, since in this view of the case the plaintiff was bound to rely upon the authority of the wife implied in law, and the equivalent duty of the husband to provide her with appropriate “necessaries,” the question whether the summer board alleged to have been contracted for fell within that désignation was a question of fact for the jury. The learned judge, however, himself decided that question as one of law by charging that if the wife made the agreement with the plaintiff, ‘ ‘ the law presumes that she had authority from the husband so to do,” to which portion of the charge the defendant duly excepted.
Plaintiff was entitled to the verdict of the jury on the question whether in view of the position and circumstances of the defendant’s household and the habits of. life in this community, summer board for the family for the few months of the heated term is a “necessary” as defined by the authorities.
I, therefore, concur in the conclusion that the judgment be reversed and a new trial granted.
Judgment and order as against Harry J. Hush reversed and new trial ordered, with costs to appellant to abide event, and judgment as to Catharine Hush modified and as so modified affirmed, without costs.