This action was brought against the defendant E. S. Munford and his wife, Mrs. E. S. Munford, *Page 232 upon an account for goods alleged to have been sold to the defendants at their special instance and request. Judgment was entered in favor of E. S. Munford and against the other defendant. Plaintiff appeals from the judgment in favor of E. S. Munford.
The items of account consisted of clothing and other dry goods furnished to Mrs. Munford while she was residing at Los Angeles. The husband at that time resided elsewhere, but their separation was temporary, and the case does not involve any defense on the ground that the defendants were living separate and apart from each other. Mr. Munford testified that he did not know anything of the account until after the articles were furnished, and that his wife never informed him of the fact that she had opened the account. He was receiving a salary of $416 per month, and was sending to his wife for the support of herself and children the sum of three hundred dollars per month. She also had some separate income. Mr. Frank Coulter appears to have been an officer and one of the managers of the plaintiff. Mrs. Munford testified that for some time after she began trading with the plaintiff she paid cash for the articles purchased by her, until after she was urged by Mr. Coulter and by Mr. Baker, the general manager, to open a credit account. This was done by Mr. Baker, and the account was made in the name of Mrs. Munford. She testified that Mr. Frank Coulter knew that her husband was providing her with three hundred dollars a month, and that that sum was sufficient for the support of herself and family. There is no evidence tending to show that the defendant E. S. Munford neglected to make adequate provision for the support of his wife or family.
"If the husband neglect to make adequate provision for the support of his wife, . . . any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband." (Civ. Code, sec. 174) It will be seen that the Civil Code limits the conditions of liability of a husband for merchandise sold to his wife. In Hoey v. Hechtman, 2 Cal.App. 120, [83 P. 85], the complaint alleged that the defendant A. J. Hechtman was indebted to plaintiff's assignor in certain sums for goods, wares, and merchandise sold to Carrie C. Hechtman, wife of the defendant, "and that said goods, wares, and merchandise were common necessaries of life and necessary *Page 233 for the support and maintenance of said Carrie C. Hechtman." In that case it was held by the first district court of appeal that defendant's demurrer to the complaint upon the ground that it did not state a cause of action, should have been sustained. "The complaint does not allege a sale to defendant, and does not allege all the facts necessary under section 174 of the Civil Code, to fix liability upon a husband for a sale to the wife," citing Simon, Jacobs Co. v. Scott, 53 Cal. 76, andNissen v. Bendixsen, 69 Cal. 521, [11 P. 29]. The court further said: "In the complaint before us it is alleged that the goods were necessary for the support of the wife, but it is not alleged that the husband had neglected to make adequate provision for her support. Both are essential. The allegation that the goods were necessary for her support refers to the character of the goods as being suitable to her circumstances and condition in life, and such allegation does not import that the husband had neglected to make adequate provision for her support. Under the statute the articles must be necessary for her support and the husband must have neglected to make adequate provision for her support." In St. Vincent'sInstitution etc. v. Davis, 129 Cal. 17, [61 P. 476], the supreme court referred to section 174 of the Civil Code, and stated that, under the provisions of that section, whoever supplies necessaries for the support of a wife must, in order to recover therefor against the husband, show that the husband had failed to make adequate provision for the support of his wife. There being no such proof, it was held that the plaintiff was not entitled to recover. The same rule is applicable to the case at bar, for we must presume that the court believed the testimony of the defendants, notwithstanding that it was inconsistent with some of the testimony presented on behalf of the plaintiff.
Counsel for appellant say in their brief that it is an uncontradicted fact that when this account was first brought to the attention of Mr. Munford by means of a letter from the plaintiff, he wrote to Mr. Coulter a letter which contained an admission of his liability and a promise to pay the indebtedness when he got in better circumstances. That letter was lost, but one of the plaintiff's witnesses testified concerning its contents. But counsel are wrong in stating that the fact thus shown is uncontradicted, for their brief contains a quotation from the testimony of Mr. Munford in which he directly *Page 234 denies that in any such letter he said that he owed the account or that he would pay it.
Appellant claims that the court erred in excluding testimony offered by the plaintiff for the purpose of proving that the account was opened on the credit of the husband, as well as the wife. This offered testimony related to conversations between the general manager of the plaintiff and its "credit man," and to statements made by the manager to the credit man about the affairs and financial responsibility of the defendants. These statements were not made in the presence of the defendants or either of them, or with their knowledge, and the objections were properly sustained.
The judgment is affirmed.
James, J., and Shaw, J., concurred.