Opinion by
Me. Chief J ustioe Sterrett,This record presents the single question whether the learned trial judge erred “ in directing the jury to render a verdict for the defendant.”
An examination of the testimony, in support of the plaintiff’s claim, cléarly shows that it was not only proper for the consideration of the jury, but, if believed, would have warranted them in finding that the defendant, without apparent justification, practically deserted his wife and child, and neglected to make such provision for their support and maintenance as their necessities required and his own financial condition would have enabled him to furnish. It also shows that the goods for which suit was brought,—consisting chiefly of toilet articles, drugs, medicines, infant’s food, etc., ordered by and delivered to defendant’s wife for the use of herself and their infant child,— were necessaries suitable to their condition and circumstances. Bills for similar articles, previously ordered by her, had been presented to and paid by defendant. There is no evidence that plaintiff was aware of any change in the domestic relations of the defendant and his wife until payment of the account in suit was demanded and refused by defendant.
Special reference to or discussion of the testimony is unnecessary. It is sufficient to. say that it tended to prove facts which, if found by the jury, would have entitled the plaintiff to a verdict, and we are clearly-of opinion that it should have been submitted to them under proper instructions.
Judgment reversed and a venire facias de novo awarded.