Denied June 22, 1915.
On Petition for Rehearing.
(148 Pac. 1151.)
Opinion by
Mr. Chief Justice Moore.In a petition for a rehearing it is maintained that an error was committed in holding the statute of limitations was not extended as to the plaintiff whose husband, in order to evidence the purchase price of goods, wares and merchandise bought for and used as family expenses, had executed therefor a promissory note upon which obligation a judgment was rendered; and that Section 7039, L. O. L., having been obtained from Iowa, the construction placed upon the statute by the Supreme Court of that state prior to its adoption in Oregon is controlling herein. Our statute was enacted in the year 1878. In Lawrence v. Sinnamon, 24 Iowa, 80, decided January 28, 1867, in construing the Iowa statute, it was held that the husband being the head of the family was not only authorized to make purchases of household expenses in his own name, but to change the form of evidence of the indebtedness arising therefrom by executing his promissory note for the amount, thereby taking the case out of the statute of limitations as to the wife.
In Polly v. Walker, 60 Iowa, 86 (14 N. W. 137), decided December 7, 1882, a judgment was rendered against a husband, with his consent in the year 1867, for the value of goods purchased for use in the family *538as necessaries. In March, 1881, the husband being insolvent and the judgment remaining unpaid, an execution issued thereon was levied upon the real property of the wife, who thereupon instituted a suit to enjoin the sale. A cross-bill was interposed by the defendants, alleging that the husband and wife were liable for the value of the goods so sold, and that taking a judgment against him alone, did not in any manner release her from the debt or relieve her property from liability. A demurrer to the cross-bill, on the ground that the cause of suit was barred by the statute of limitations, was sustained and the defendants appealed. In affirming the decree, Mr. Justice Rothrock, speaking for the court, says:
“Counsel for appellant contends that, although this debt was contracted prior to 1867, and suit was brought in that year against the husband alone, and judgment obtained against him, without any reference to the wife or her property, the judgment, or rather the original claim, may now be made a charge upon her property, because the judgment is not barred by the statute of limitations as against the husband. In other words, it is claimed that, so long as the debt exists against the husband, it may be enforced as a charge or lien upon the wife’s property; and reliance is had upon the case of Lawrence v. Sinnamon, 24 Iowa, 80.” Further in the opinion it is observed: “When the judgment was rendered against the husband for this debt, although it operated to extend the time within which the claim could be collected of him, it was not a contract binding upon the wife, nor in any manner connecting her with it, as in the case of Lawrence V. Sinnamon, supra. In our opinion the demurrer to the cross-petition was correctly sustained.”
Relying probably upon the rule announced in Polly v. Walker, 60 Iowa, 86 (14 N. W. 137), but not refer*539ring to that case, it was held in Black v. Sippy, 15 Or. 574 (16 Pac. 418), an action to recover the value of merchandise sold and delivered, decided in January, 1888, that the wife was liable for goods purchased for family use, although sold to the husband on his individual credit, and that he might change the form of indebtedness by giving his promissory note for the account, without releasing her.
So, too, in Holmes v. Page, 19 Or. 232 (23 Pac. 961), decided in May, 1890, it was ruled that where goods were purchased and used as family expenses, either the husband or the wife was liable in an action for them, but that the wife could not be held on an account stated between her husband and the merchants, to which contract she had not assented. It will thus be seen that this court, in deciding the cases last cited, followed the rule adopted by the Supreme Court of Iowa in Polly v. Walker, 60 Iowa, 86 (14 N. W. 137). Without referring to that case, so far as we have been able to ascertain, other decisions of that court seem to have departed from the legal principle thus promulgated.
In Fitzgerald v. McCarty, 55 Iowa, 702 (8 N. W. 646), it was held that a wife could not be charged with attorney’s fees and interest at a greater rate than that prescribed by statute, when no contract to that' effect had been made, because her husband had given a promissory note stipulating therefor, to evidence the purchase price of goods obtained and used as family expenses.
The statute imposes upon the property of the husband and the wife a joint and several liability for the reasonable value of goods, wares and merchandise purchased by either spouse and used in the family *540as necessary expenses. The burden thus cast results from a proceeding in invitum and repels the presumption that one spouse is the agent for the other, and while the statute of limitations may be extended by one of the parties, the other is not bound thereby. The remedy against the one who did not join in executing a promissory note or in assenting to a stated account must be based upon an itemized account of the goods sold and delivered, and the action must be instituted, in order to be maintainable, within six years from the sale of such merchandise.
We adhere to the former opinion, and the petition for a rehearing is denied.
Affirmed. Rehearing Denied.