
    Rachel E. Oatman, Respondent, v. Harry W. Watrous and Allen W. Adams, as Executors, etc., of Walter W. Watrous, Deceased, Appellants.
    First Department,
    June 21, 1907.
    Husband and wife — husband making allowance to wife not liable for necessaries — evidence insufficient to show special promise to pay for goods delivered to wife —agency terminated by death of principal.
    A husband who makes an allowance to his. wife sufficient to supply her wants is not liable to a third, person for necessaries furnished to the wife, which rule' applies also where a woman lives with a man in meretricious relations and is given san ample allowance. , 1 .
    An" allowance of §1;200 or §1,300 a month out of an annual income‘of §20,000 is - a sufficient provision for a wife.
    Evidence given in'an action by a third, person against the estate of a decedent to recover for necessaries alleged to.have been furnished to his common-law wife on an alleged specialpromise ¿o pay considered, and held, to be. insufficient to warrant a recovery.
    Such claims are scrutinized by the court with great care, and must be established by very satisfactory evidence.
    In such action evidence that the husband on the occasion of a particular sale to the wife stated to a messenger of the seller to let his wife have anything she wanted is no proof that the special promise was intended to cover subsequent sales. . • ; .
    When it appears that the seller billed the goods to the wife instead of to the husband, it will be inferred that the seller did not- intend to hold the husband primarily liable.
    Although the plaintiff gives testimony that she was employed as an agent by the husband to buy: furs in a foreign country for the wife, the agency is termi-" nated by the death of the husband, and the agent cannot recover for furs bought subsequent to his death.
    An agency to survive the death of the principal must be coupled with an interest in the subject-matter of the agency, and an agency created to carry out a proposed gift to a wife terminates on the death Of the donor.
    In any event, if an agent employed to complete a gift executes the agency after the death of the principal, the property should be turned over to his estate and not to the donee.
    . Appeal by the. defendants, Harry W. Watrous and -another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the.office of the clerk of the county of New York on the 17th day of March, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of March, 1906, "denying the defendants’ motion for a new trial made upon the minutes.
    
      George Finck, for the appellants.
    
      Franklin Pierce, for the respondents
   McLaughlin, J.:

This action was brought to recover the sum of $5,825, with interest thereon from a specified date, .the value of' certain clothing and wearing apparel sold and delivered by the plaintiff to one Katherine Ballou, now Katherine Brown, with whom the decedent had lived in meretricious relations, and wlio. had at various times passed as his wife. The decedent died June 21, 1903, and the clothing and wearing apparel were alleged to have been purchased between March tenth and June fifteenth of the same year. The plaintiff had a verdict for the full amount claimed, and from the judgment entered thereon and an order denying a motion for a new trial the defendants appeal.

The plaintiff seeks to sustain the judgment upon either one of two theories: First, that the evidence adduced.at the trial shows +hat Katherine Ballou was the common-law wife of the decedent or at least was held out by him to be his wife, and that lie thereupon became liable as a husband.for necessaries furnished to her; and second, that he "expressly promised to pay for the clothing and wearing apparel. ,

I am of the opinion that the judgment cannot be sustained upon . the first of these theories. The am contradicted testimony of Katherine Ballou shows that Watrous had been giving her in the neighborhood of. $1,200 or $1,300 a month for living expenses for over a year before his death, and certain checks put in evidence would seem to indicate that he gave her even more than this! The law, where a husband, makes a suitable allowance to a wife for her support, has been clearly and definitely settled in this State by the recent decision in Wanamaker v. Weaver (176 N. Y. 75). Judge Haight, in delivering the opinion of the majority of the court in that case, after referring to several English cases, said: The discussion of the English cases, to which'attention has been called-, covers the points involved' in this case. They, in effect, hold * * * that, the husband, in defense, may show -that the wife was amply supplied with articles of the same character as those purchased, or that she had.been- furnished with ready money with which to pay cash therefor ; that the question of her agency is one of fact, and is not a conclusion of. law to be .drawn alone from the' marital "(relation. The conclusions- reached in these eases are in acc.ord with, the rule as stated by Scliouler and some of the decisions alluded to in this State, and we incline to the view that the .rule recognized by them is the safer and better rule to follow. It. compels the husband to pay in a proper case'and at the same time affords him some financial protection against the seductive■ wiles .exerted by tradesmen to .induce' extravagant wives to purchase that which they really do not need.” One of the English bases to which reference was made in tlie 'opinion is Debenham v. Mellon (L. R. 5 Q. B. Div. 394),. where Bbam.well, L. J., in discussing the liabilities of a husband "for goods furnished to the wife, said: “ The goods, were necessaries in the sense that they-consisted, of. articles'of'dress suitable to the wife’s station in life, but they were not .necessaries-in the sense that she.stood in need of them, for she had either a sufficient supply of .articles of a-similar kind, or at least sufficient means from her husband or otherwise to -acquire them without running him into debt for them.” The same case was: subsequently, brought Up. for- review in the.. House. óf Lords (L. R. 6 App. Cas. 24), where Lord Chancellor Selboene said.: “ It Was argued that because these articles were fou.nd'to be in some sensec necessaries ’' in their nature, the husband ought, therefore, to be bound. But-even if the husband and wife had been living, apart, the husband would not be bound by reason of such things being necessaries, if he made-a reasonable allowance to his wife and duly paid it. Much less can he be', bound in a case like this where they were not living apart, and when h.e .made, her an allowance sufficient' to cover all proper expenditure for her own and her children’s clothing.” ■ ...

At the time the decedent died, his entire, assets, without, making any deductions whatever, amounted to less than $200,000, and his income for some time-prior to his death was not far from $20,000, The allowance, therefore, which he made .to Katherine Ballou was, unquestionably, amply sufficient to relieve him from any. and all liability to the plaintiff, whether Katherine Ballou was his,wife, or held out to be such. /

Hor do I think the judgment can be sustained upon the second theory — that of, a special promise.' The bill of particulars furnished by plaintiff states tliat she was told by Katherine.Ballou and others that Kat'herine Ballou was the wife of Walter W. Watrous, the decedent; that on September 22, 1902, at her direction, the plaintiff charged all goods purchased by Katherine Ballou to him ; that a few days thereafter he told plaintiff “ to let Iris wife ” (referring to Katherine Ballon) “ have whatever she wanted.” There was no evidence offered at the trial which established the facts thus stated in the bill of particulars; there was, however, some evidence which tended to establish an express promise on the part of the decedent, and this consisted of the- testimony of the witnessTTelen Magill, a former employee of the plaintiff. She testified, in substance, that in the fall of 1902 she delivered certain, gowns to Mrs. Ballou at the Manhattan Hotel in the city of New York; that the decedent was present and that he then told her to tell the plaintiff to let Mrs. Ballou have anything she wanted, and he would pay for it. This witness was then employed' as an errand girl. I do not think the promise, even as testified to by her, can be construed as applying to any other transaction than the one then under consideration. The goods which were then selected wTere subsequently paid for, and those which are the subject-matter of this action were not ordered of delivered until several months thereafter. And in this connection it is worthy of consideration that it does not satisfactorily appear that the plaintiff placed any reliance upon the promise, or materially changed her position by reason of it. Katherine: Ballou had previously had an account with the plaintiff; her account as Mrs. Watrous charged to decedent was, according to the bill of particulars, opened September 22, 1902, and the alleged special promise was not made'until some time thereafter; Katherine Ballon paid for all goods bought in the fall of that year, amounting to something like $1,600 in cash payments, with the exception of one check made by Watrous for $100,- but this is without significance, as he had given a check for $250 which was applied to the 1902 spring account. It does not .appear tliat he was ever inside the plaintiff’s establishment or that any bills for goods sold to Mrs. Ballou were ever sent to him. The plaintiff’s bookkeeper testified: “I -think I, did make and send a bill to Mrs. W. W. Watrous: I don’t' remember exactly.. I must have as I made out bills the first of every' month. I probably did. We always do send our bills to. the wives. * * '* My' work was all done under the direction of Mrs. .Oatman.” The only legitimate inference to/ be drawn from this testimony is-that, the plaintiff never regarded the decedent, as primarily liable and-if any credit were given to him it was evidently because he was the husband of Mrs. Ballon or held her out to- be Ms wife, and not because of- an express promise made toa delivery girl -the preceding year. .' ' .'

After a careful consideration of all. the evidence bearing upon the alleged express' promise, I do not think it satisfactorily establishes, or is sufficient to sustain a finding that any such promise was .made. Mrs. Magill testified that when she went to the Manhattan Hotel on' the occasion referred to she asked for Mrs. Ballou, under ■ which name she was known to the witness, -and she was then informed' by some one in charge of the office that, there was rib . such person stopping there; .that she thereupon went back to the plaintiff and returned to the hotel' later in the day arid asked for ■ Mrs. Watrous,. and was shown -to a .room where she found Mrs. Ballou and the decedent; she also testified that the .Manhattan Hotel was . located on Forty-second street “ right opposite the ...Grand Central -depot'; it was-on the down town side surely.” The mistake as to the location of the hotel is- of little or no importance except when taken, in connection with other statements of the’, witness. ' It was established beyond contradiction ..that Katherine -Ballou with her sister, Mrs. Spencer, was. at the hotel during September and until about October 4, 1902,. and that she ■ was there registered and known as Mrs. Katherine Ballou, and during the Tatter- part of the time a person, presumably the decedent, also1 occupied a room i,n the hotel and was registered and known as K.. "Ballou. There was no one there at that time who was registered of known by the name of .Watrous. It is, therefore, incredible that the. witness Magill should have been informed that there was-no one by the name of Ballou at the hotel and afterwards have . found her by the name of Watrous. Thé witness also was unable to fix the date of this interview, except that it must have been in September, or before the 1st of January, 1903. The two gowns which she was positive she delivered on that occasion were charged on the plaintiff’s books under the dates of October thirteenth and October eighteenth, and Mrs. Ballou and K. Ballou left the hotel about October fourth. It is also very significant that Katherine Ballou did not testify as to the alleged promise made at the hotel or make any reference to or mention of' it. She did, however, testify that a similar promise was made to the witness Magill on the occasion of the delivery of a white coat in May, 1903. Hot only this, but in a letter written by Katherine Ballou to the' decedent with reference to the dresses which constitute a large part of plaintiff’s claim, she said: I shall endeavor to make myself somewhat of a queen at Atlantic City, now I’ve gone to the big expense of Paris gowns intended for Saratoga. Sorry I did not know before. Could have saved money. But what matters after all, as long as'I can pay for them & I can, that is quite certain.”

It is true there was some evidence introduced to the effect that Watrous stated at different times that he was paying for the clothes which Mrs. Ballou wore, but such statements did not necessarily imply that he was liable to pay for those purchased of the plaintiff. There can be but. little doubt that he gave Katherine Ballou the money to make these and other purchases, but there is no evidence, as I read the record, sufficient to sustain a finding that she was authorized to, or did pledge his. credit in making such purchases; indeed, her letter from which the above quotation is taken, would seem to indicate the contrary. A book kept by the plaintiff was also introduced, which it is claimed upon its face showed that the goods in question were charged to the decedent, but this does not affect the situation, because, according to the. bill of particulars, the charge to him was made by the direction of Katherine Ballou and this before the alleged promise was made.

In addition to this evidence was givén which tended in no small degree tó destroy or shake whatever confidence one might be led to place in the book by reason of the way in which it was kept and the time and manner in which the entries were made.

The plaintiff’s bill includes — and she has had a recovery therefor— an item of $2,00Q for a set of imported sable furs, consisting of a stole and muff. This set, according to the ¿videncia offered by plaintiff, was ordered in May, 1903, and 'delivered, to Katherine ■Ballou in September or. October of the same year.' This item appears to have, been originally charged in the books at $l?000j. and subsequently .changed to $2,000,'and while this'in and of itself may or may not be important, the delivery of' the. set is very significant when it is remembered that the decedent died in the preceding June and the.plaintiff admitted that at the time of his death she knew of it.. If it be true, as contended by the' plaintiff, that the decedent did in fact authorize Katherine Ballou to order these furs, and expressly, promised to pay for them, it is difficult to see upon what theory the plaintiff Was entitled to recover the purchase price from his estate. The plaintiff testified that she gave. the order to her . importers; she went to Paris', in July and inspected the , sables, which were i/m made up and they were brought here and delivered on her return to this country. Considering the proof bearing upon this item in the most' favorable manner to the plaintiff, and' assuming that the order was a contract for work and services, and, therefore, did not come within the Statute of Frauds, there is1 nothing to show that the furs to be .made 'up. had even been ordered by the ■ plaintiff before the decedent’s death; in: fact; the plaintiff herself did not testify that she-gave tlie order to her importers before she. knew of his death. Hot only this, but it would seem that the giving-Of the order to her importers, if it were in fact given, was entirely on her own responsibility for Katherine Ballou testified1, concerning the furs: “They were ordered in May. ' The occasion for ordering them . was because Madam. . Oatman'was' going abroad and she. could get them better over there. I talked to him-as to whom they were to be purchased of. Madam Oatman was to get them on - the other side.” And further:' “T said the sable set was ordered about May ’ previous to Mrs.- Oatmdn’s departure for Europe, so as to enable her to make thé purchase 'there: * * * I believe she' was' to buy . the sable set id Paris.” If the plaintiff Were merely authorized to buy a sable set in Paris, as this testimony would seem to indicate, she cannot hold the decedent’s estate liable because she knew of his death in June and she did not go to Paris until July. But even if it be conceded that she was authorized to . give the order prior to the time she Went to Paris, it does not aid the plaintiff, so far as delivery of the furs is concerned, because her agency did not survive the decedent’s death. The interest which can protect a power after the death of the person by whom it was created must be an interest in the thing to which it relates. (Hunt v. Rousmanier, 8 Wheat. 174; Farmers' Loan & Trust Co. v. Wilson, 139 N. Y. 284; Hoffman v. Union Dime Sav. Inst., 109 App. Div. 24.) The fact that the furs were ordered as a gift to Katherine Ballou does not constitute such an interest. The gift was not completed at the time of the decedent’s death and Katherine Ballon’s interest in them at that time was nothing more than that' of a prospective donee, which was insufficient to continue an agency after'the death of the principal. The furs, if ordered by the decedent, or if he liad pledged his credit in payment of them—he having died before a delivery could be made — should have been delivered to liis estate if the ■ plaintiff, expected that it would pay the purchase price. And the fact that the plaintiff, after learning of the decedent’s death, without so far as appears making any effort to cancel any order she. may have given, should have gone to Paris and purchased these furs valued at $2,000 and several months thereafter delivered them to Katherine Ballou, without communicating in any way with the decedent’s estate, indicates to me very clearly that the plaintiff did not rely upon any order given by the decedent and did not, at the time of the delivery, look to his estate for payment.

The courts uniformly scrutinize claims of this character with great care and permit a recovery only in cases where the claim is established by very satisfactory evidence. The rule thus adopted is made necessary by reason of the. fact that one of the parties to the contract upon which the establishment of the claim depends is dead. • (Shakespeare v. Markham, 72 N. Y. 400; Matter of Van Slooten v. Wheeler, 140 id. 624; Rosseau v. Rouss, 180 id. 116; Apollonio v. Langley, 106 App. Div. 41; Scheu v. Blum, 119 id. 825.)

In conclusion I am clearly of. the opinion that the .evidence presented falls far short of establishing a contract or agreement, either express or implied (and' this is the only ground upon which the' plaintiff by any possibility could recover), on the part of the dece'dent to pay for" the dresses and wearing apparel set out-in the complaint, and for that reason his estate is not liable.

■ The judgment and order appealed from, therefore, must be reversed and a new trial-ordered, with costs to appellants- to abide, event. ,

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

. Judgment and order reversed, new trial ordered, costs to appellants, to abide event.  