(concurring). I join the court in retaining the doctrine of necessaries and imposing liability on Mr. Buckstaff for the cost of the sofa. I do not agree, however, with that portion of the opinion in which the court adopts a rule placing primary liability on the husband to the creditor for necessaries supplied to the family.1
*124This case presents neither a novel fact situation nor a novel question of law. I believe that resolution of this case requires the court to do no more than apply the common law doctrine of necessaries to the facts. Mrs. Buck-staff is a full-time homemaker; her contribution to the support of the family is her domestic labor. Apparently she has no earnings or property in her own name.2 Mr. Buckstaff is employed outside the home. He has income and property in his own name. Mrs. Buckstaff ordered the sofa for the family home, but she did not personally promise to pay for the sofa. On these facts the law in Wisconsin imposes the duty to support on the husband. The common law doctrine of necessaries which arises from and is ancillary to the duty to support allows a merchant to collect the cost of the necessary goods from the husband after extending credit to the wife. As the *125majority points out, the elements of the common law doctrine of necessaries have been proved in this casé. Imposing liability for the sofa on Mr. Buckstaff comports not only with the common law doctrine of necessaries but also with the Wisconsin law of support which follows the contemporary trend toward equality of the sexes.
I recognize, as does the majority, that if the common law doctrine of necessaries is to survive as a rule of law it must be modified in accordance with the developing laws recognizing equal rights and responsibilities of both marital partners and the changes in the economic and social conditions of society. The common law doctrine of necessaries was premised on the legal disability of the married woman and on the husband’s duty to support. Today, the married woman is free to contract, sec. 766.15, Stats., Baum v. Bahn Frei Mut. B. & L. Assoc., 237 Wis. 117, 295 N.W. 14 (1941), and the duty of support rests not on the husband alone but on both the husband and wife. Sec. 767.08, Stats. While these changes in the law will require an alteration of the doctrine of necessaries, I would leave that alteration to a case in which the application of the common law doctrine conflicts with the married women statutes and the support statutes. This is not the case.
I believe the court has erred in adopting a flat, general rule which places primary liability on the husband to the creditor who supplies necessaries to the family. In my opinion, the rule suffers from two infirmities: First, the rule is not in harmony with the legislatively established public policy of this state which is to impose the obligation to support on both the husband and wife on the basis of their respective eeenomie resources and not on one spouse or the other on the basis of gender. See secs. 767.08(1), 767.25, 767.26, Stats.; sec. 52.055, Stats., amended by sec. 8, ch. 352, Laws of 1979. Second, *126the rule discriminates against men and thus contravenes the state and federal constitutional guarantees of equal protection of law.3 These constitutional provisions apply to the decisions of the courts, just as they do to the acts of the state legislature. Shelley v. Kraemer, 334 U.S. 1, 17 (1948); New York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964).
I am persuaded that the majority rule which effects an unequal distribution of economic benefits and burdens on the basis of gender cannot pass muster under the federal and Wisconsin constitutions. See, e.g., Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 100 S. Ct. 1540 (1980); Califano v. Westcott, 443 U.S. 76, 99 S. Ct. 2655 (1979); Orr v. Orr, 440 U.S. 268 (1979); Califano v. Webster, 430 U.S. 313 (1977); Califano v. Goldfarb, 430 U.S. 199 (1977); Craig v. Boren, 429 U.S. 190 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Schlesinger v. Ballard, 419 U.S. 498 (1975); Kahn v. Shevin, 416 U.S. 351 (1975); Frontiero v. Richardson, 411 U.S. 677 (1973); Reed v. Reed, 404 U.S. 71 (1971).
The New Jersey Supreme Court similarly concluded that a rule imposing liability for necessaries solely on *127the husband was unconstitutional under the federal and state constitutions, reasoning as follows:
“Under the [common law] rule, even a husband who is economically dependent on his wife would be liable for the necessary expenses of both spouses, while the wife would not be liable for either. In perpetuating additional benefits for a wife when the benefits may not be needed, the rule runs afoul of the equal protection clause. Orr, supra, 440 U.S. at 282-283, 99 S. Ct. at 1113, 59 L. Ed2d at 321.
“We recognize that in many instances the present rule correctly operates to favor a needy wife. Even wives who have entered the work force generally earn substantially less than their husbands. . . . However, that is an insufficient reason to retain a gender based classification that denigrates the efforts of women who contribute to the finances of their families and denies equal protection to husbands. Weinberger v. Weisenfeld, supra, 420 U.S. at 645, 95 S. Ct. at 1232, 43 L. Ed.2d at 523.
“Although the New Jersey Constitution does not contain an equal protection clause, the same result follows as under the United States Constitution. The relevant section of the New Jersey Constitution provides ‘All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.’ Art. 1, sec. 1, par. 1. In interpreting that section, this Court stated that it provides comparable or superior protection against unequal protection of the law. Peper v. Princeton University Board of Trustees, 77 N.J. 55, 79 (1978) (discrimination on the basis of gender in private employment may deny equal protection of the laws under Art. 1, sec. 1, par. 1 of the New Jersey Constitution). For reasons previously set forth, we conclude that the rule concerning necessaries with its inherent discrimination against husbands constitutes a denial of equal protection of the laws under the New Jersey Constitution.” Jersey Shore Medical Center-Fitkin Hospital v. Estate of Sidney Baum, 84 N.J. 137, 417 A.2d 1003, 1008-1009 (1980).
*128I believe the reasoning1 of the New Jersey Supreme Court is applicable to the rule adopted by the majority.
For the reasons I have set forth, I concur in the disposition of the case but not in the rule adopted by the court imposing primary liability for necessaries on the husband.4
The court formulates the rule of necessaries as follows: “In light of the proper function of the necessaries rule in relation to the support of the family, in the absence of an express contract to the contrary, we hold that a husband incurs the primary obligation, *124implied as a matter of law, to assume liability for the necessaries which have been procured for the sustenance of his family.” The court’s view that the husband is primarily liable for necessaries is reiterated by the court in In the Matter of the Estate of Stromsted, 99 Wis.2d 136, 299 N.W.2d 226 (1980).
I interpret the phrase “in the absence of an express contract to the contrary” as retaining the rule that had Mrs. Buckstaff expressly promised that she would pay for the sofa, or had Sharpe Furniture expressly agreed not to seek reimbursement from Mr. Buckstaff, the husband would not be liable to the creditor under the doctrine of necessaries. 1 Schouler, Marriage, Divorce, Segaration and Domestic Relations sec. 97 (Sixth Ed. 1921).
1 assume the majority’s use of the phrase “express contract” in this sentence includes both an express agreement and an agreement evidenced by circumstances which show a mutual intention to contract (contract implied in fact). See In the Matter of the Estate of Stromsted, 99 Wis.2d 136, 139 n. 1, 140-141, 142 n. 6, 145 n. 8, 146 n. 9, 299 N.W.2d 226 (1980).
Had Mrs. Buckstaff earnings or property, Sharpe Furniture, which had obtained a default judgment in the sum of $715.00 plus interest against her, would have collected its judgment from her assets, released Mr. Buckstaff from any liability, and saved itself the expense of fighting Mr. Buckstaff’s appeal to the court of appeals and to this court.
The Fourteenth Amendment of the United States Constitution provides:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Article I, sec. 1 of the Constitution of the State of Wisconsin provides:
“All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
In Matter of Estate of Stromsted, 99 Wis.2d 136, 299 N.W.2d 226 (1980), the court imposes secondary liability for necessaries on the wife.