Tille v. Finly

HORNBECK, J,

dissenting:

Upon further consideration, I am of opinion that the application for rehearing should be granted, cause remanded and final judgment entered dismissing the petition.

The majority presents the facts in the most favorable light for the defendant in error. These establish nothing more than that the plaintiff in error was the husband of Mrs. Tille, and that notwithstanding this knowledge by Dr. Finly he made the charge to the wife, Mrs. Tille, and thereafter credit was received by the doctor from her upon the account. The credit having been extended to the wife and the purpose indicated to accept her exclusively for the obligation, the general rule of law in such a situation applies and the creditor cannot thereafter insist upon the right to change his debtor. This principle is established in Dorsey v Goodenow, W. 120.

The narrow question considered is discussed at length in an annotation to the case of Brown v Dureppo, 27 A.L.R., 554, *176and the rule there stated as being well settled both at common law and under modern statutes, is that if the credit for necessaries furnished to the wife is given exclusively to her, the husband is not ordinarily liable therefor. The rule is supported by extensive authority from sixteen of the states of the United States and cases from England and Canada. This authority and others are cited in the case of Service Company v Monk, 19 Oh Ap, page 16, wherein the Court of Appeals of Scioto County, Mauck, PJ, writing the opinion concludes that:

“A husband is not liable for necessaries furnished his wife if the merchant furnishing them charged them to the wife and was unaware that she had a husband.”

The only element of difference in the Monk case and the instant case is that the creditor in the Monk case did not know that the wife had a husband living. This difference, in my judgment is not sufficient to require a different determination than was reached in the Monk case.