(dissenting). The record in this case is almost devoid of facts. Yet the majority fashions a new rule governing liability for necessaries. I dissent.
We know only that Mr. and Mrs. Stromsted were husband and wife; that they were living together at the time Mrs. Stromsted consented to and received medical services; that Mrs. Stromsted committed suicide; that the hospital filed a claim against her estate; that the estate refused to pay the claim asserting that the husband should be liable, not the estate. We do not know anything about the past dealings between husband, decedent and doctor, or the wage earning responsibilities *147of the decedent or her husband, or the respective financial resources or earning abilities of the decedent or her husband. In light of the paucity of the record, I would remand the case to the trial court for a hearing, for findings of fact, and for decision by the trial court on the facts.1 When the facts are known, the estate’s *148liability can be determined. The result may be plain once the facts are known. Cf. Sharpe Furniture. Co. v. Buckstaff, 99 Wis.2d 114, 128, 299 N.W.2d 219 (1980), (Shirley S. Abrahamson, J., concurring).
As I explained in Sharpe, I agree the common law rule governing liability for necessaries needs to be modified. The dilemma that faces the court in cases such as the instant one is that of drawing a rule which treats the creditor fairly while still serving the common law function of the doctrine of necessaries, that is, effectuating the support of a needy spouse. The majority sets a hard and fast rule which does not consider the economic circumstances of the spouses and abandons any effort to strike this balance between the creditor’s rights and the needs of a spouse and society to secure the duty to support. Whatever the difficulty may be in drawing a rule in this area of the law, it is apparent that the rule cannot be gender based. In Sharpe Furniture, Inc. v. Buckstaff, 99 Wis.2d 114, 125, 299 N.W.2d 219 (1980) (Shirley S. Abrahamson, J. concurring), I stated my objections on constitutional and public policy grounds to the rule there announced which placed primary liability for necessaries upon the husband. The gender-based rule is extended in this case to impose secondary *149liability for necessaries on the wife. The objections I made in Sharpe are applicable here and I reassert them.
The majority reasons that the wife should be secondarily liable because she “shares with her husband the legal duty of support of the family.” Yet the law of support which underpins the doctrine of necessaries is not itself a hard and fast rule. The statutory duty to support is allocated between the marital partners on the basis of a number of factors. Sec. 767.08, Stats. Without any knowledge of the financial circumstances of the Stromsteds or of their relation with the creditor, cf. Seifert v. Milwaukee S. T. Corp., 4 Wis.2d 623, 625-6, 91 N.W.2d 236 (1958), the court designates the husband primarily liable and the wife secondarily liable. It is the creditor’s neglect which is remedied by the court in this case, not the neglect of one marital partner in the Stromsted marriage to support the family. In the instant case and in Sharpe the creditor failed to obtain either the wife’s or the husband’s express written or oral promise to pay for the goods or services. The creditor could have protected itself by preparing its written documents in proper form.
The creditor’s benefit may be attained at a substantial cost to the homemaker. Under the majority’s formulation, a full-time homemaker who has supported the family by contributing her services, who has little or no income or property, and to whom the husband owes the duty to support, becomes, in effect, a guarantor of payment for necessaries supplied to her husband, herself and the children. Our court has said that the earnings of the wage earner are “his property out of which he has the duty to support his family” and any funds left after payment of expenses of support belong to the wage earner, not to the homemaker. Rasmussen v. Oshkosh Savings & Loan Asso., 35 Wis.2d 605, 611, 151 N.W.2d 730 (1967). Thus without control over the *150“family” income or assets, the homemaker is now made liable for family necessaries. And the full-time homemaker cannot protect herself (or himself) from the liability imposed by this court in the instant case. The court has fashioned under the name of the doctrine of necessaries a creditor’s remedy similar to the family expense statutes enacted in several states.2
It may be that a hard and fast rule not dependent on the economic circumstances of the spouses is the only kind of rule that is workable. Courts in other states faced with the problem of imposing liability on marital partners for necessaries supplied to one of them have, like the majority, adopted this type of hard and fast rule which, like the majority rule, probably produces a fair result *151in some situations and an inequitable result in others. The Mississippi court imposed joint and several liability on the marital partners for necessaries. Coolce v. Adams, 183 So.2d 925 (Miss. 1966). The New Jersey Supreme Court rejected joint and several liability, concluding that “neither equity nor reality justifies imposing unqualified liability on one spouse for the debts of the other or exempting one spouse from liability for the necessary expenses of the other.” The New Jersey court imposed primary liability on the spouse who incurred the expense and secondary liability on the other spouse. See Jersey Shore Medical Center-Fithin Hospital v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980).
I recognize the difficulties attendant in this area of the law. A simple ironclad rule applicable to all fact situations regardless of the economic circumstances of the spouses may be desirable. Nevertheless I would not decide the instant case until the trial court determines the relevant facts regarding the contract for services and the financial resources of the decedent and her husband. Rather than write broadly in an area already fraught with difficulties, I would rely upon a case-by-case determination to develop a means of deciding how the liability for necessaries in a modern household should be shared. As I said before, when the facts are determined, as they were in Sharpe, the result may be plain. I therefore dissent.
The majority states that “The rule of Jewell v. Schmidt, supra . . . does not prohibit a [married] woman from being held liable on a theory of a contract implied-in-fact.” p. 142, n. 5. However, the court’s statement that the record is “entirely inadequate to establish those actions or circumstances which would tend to show that the parties had an implicit mutual intention to contract” indicates that the court continues to treat men differently from married women for purposes of determining whether there was a contract implied in fact. If, for example, a man enters the emergency ward of the hospital and signs a consent to treatment form as in the instant case, the court would hold on these facts standing alone that the man is bound by an express contract to pay, that is the court would find an implied-in-fact contract. The court would reason that the circumstances show that the male promised to pay the hospital for services rendered at their current price. Restatement (Second) of Contracts, Tentative Draft No. 1 (1964), Section 5, Illustration 1. In contrast, under our prior cases, which are apparently not reversed by the majority opinion, if a married woman enters the hospital and signs a consent to treatment form as in the instant case, these facts standing alone would not justify holding her liable under an implied-in-fact contract. Under our prior cases the married woman is presumptively contracting on her husband’s credit as his agent for the purchase of necessaries and not contracting on her personal liability.
Applying this presumption in determining whether the wife was liable under a contract implied in fact for the purchase of false teeth, the court wrote:
“It is contended that the [seller] and the [wife] understood from the course of the transaction of ordering, providing, and delivering these teeth that it was an individual and personal sale to the [wife] and that she personally assumed to pay for them. The facts and circumstances do not sustain this claim. True, the [seller] had no personal dealings with the . . . husband. But this is not necessary if the articles were purchased under circumstances indicating that they were supplied her in the usual manner as necessaries for which a husband is liable as such. The question is, *148Did the wife negotiate the purchase under circumstances indicating that she was authorized to do so? It appears with sufficient certainty that the [wife] attended to the dental affairs of herself and of other members of the family, including the payment of such bills. There is nothing in the record to show that she paid such bills out of her separate funds or estate. Presumably, then, she made the payments for the husband and father. This is sufficient to apprise the [seller] of this fact and he must be deemed to have dealt with her upon this basis, which showed her relation to the transaction.” Clark v. Tenneson, 146 Wis. 65, 68, 130 N.W. 895 (1911).
See also Olson v. Johnson, 267 Wis. 462, 469, 66 N.W.2d 346 (1954).
I do not wish to overemphasize the point that the majority has transformed the doctrine of necessaries into a creditor’s remedy. The doctrine of necessaries probably has never been an effective or satisfactory means of enforcing the right of support and has always, in reality, been more of a benefit to the creditor than to the needy spouse. The creditor is not obligated to supply necessaries to the family, and it is generally recognized that creditors have not supplied necessaries to the needy spouse relying on collecting from the husband on the basis of the uncertain and troublesome doctrine of necessaries.
The doctrine of necessaries has surfaced in Wisconsin in recent years in two kinds of cases. The more frequent type of case has been a personal injury suit in which the issue is whether the married woman or her husband is the proper party to recover reimbursement of expenses incurred for medical services provided the wife. Baum v. Bahn Frei Mut. B. & L. Assoc., 237 Wis. 117, 295 N.W. 14 (1941); Landskron v. Hartford Accident & Indemnity Co., 241 Wis. 445, 6 N.W.2d 178 (1942) ; Fischer v. Fischer, 31 Wis.2d 293, 142 N.W.2d 857 (1966); Jewell v. Schmidt, 1 Wis.2d 241, 83 N.W.2d 487 (1957); Seitz v. Seitz, 35 Wis.2d 282, 151 N.W.2d 86 (1967). The second type of case involving necessaries is illustrated by the Sharpe case and the case at bar; these cases involve a creditor suing a family member for payment for goods or services and are less frequent.
For family expense statutes, see Clark, Domestic Relations: Cases and Problems 601 (3d ed. 1980).