
    GEORGE W. T. LORD, and others, Plaintiffs and Appellants, v. LUCAS THOMPSON, Defendant and Respondent.
    Before Monell, Ch. J., and Sedgwick, J.
    
      Decided April 3, 1876.
    
      HUSBAND AND WIFE.
    
    1. LIABILITY OF HUSBAND FOR GOODS SOLD HIS WIFE ON CREDIT.
    (a) Necbssabies, liable thebefob.
    He is liable for articles necessary for her use which he neglects or refuses to supply.
    (J) Defences to action fob, what abe not, in such case.
    1. Notice not to sell on his credit, is not.
    3. Limited divorce; suit for pending, and report of referee fixing alimony, but not confirmed, are not.
    
    
      (a) Subsequent confirmation of the report and payment of the alimony will pot relate baclc so as to affect the rights of one who had previously furnished necessaries.
    8. Offer by husband to supply is not, if connected with conditions which the wife is not bound to comply with.
    4. Previous provision by husband, is not, if the husband on separation withheld from the wife that which he had provided.
    Action to recover for goods sold and delivered.
    Appeal from judgment dismissing the complaint.
    The complaint alleged a sale and delivery to the defendant of goods, &c., and a promise by the defendant to pay, &c
    
      The answer was a general denial.
    The action was tried by the court and a jury.
    The plaintiffs proved that the defendant’s wife in August and September, 1873, purchased of the plaintiffs certain goods, consisting of female wearing apparel.
    Previous to such delivery an action for separation between the defendant and his wife had been begun by the latter, and was pending, and a reference was had to ascertain and report a suitable sum as alimony. The referee had made his report, awarding $50 a week, but no part of it had been paid. The defendant had given written notice to the plaintiffs not to furnish any goods to his wife on his, the defendant’s, credit.
    The goods in question were sold on the credit of the defendant, although charged upon the plaintiffs’ books to defendant’s wife, and there was no question but.that they were suitable and proper as respects quality and quantity.
    The only questions were, whether they were “necessaries,” and whether the defendant could, under the other facts and circumstances proved, be held responsible.
    The defendant’s wife testified that she separated from the defendant, her husband, in August, 1873. In answer to the request to state the circumstances under which she purchased the goods, she said, “I had an order of separation from the court granted rae, and I was getting ready to leave my husband’s residence, to take up my own residence, and was waiting for the decree of the referee—the referee was to decide how much I was to have—but the conduct of my husband and the servants in the house, was so violent that I was obliged to leave before I was really ready, and had the money; and while I was packing up my clothes to take them away with me, my husband came in, stopped the packing, would not allow me to take anything away with me at all, and I was afraid to stay in the house, because his conduct was so violent. I had taken off my good dress and put on my old dress to pack in, therefore I left in my old clothes, and my walking clothes and my hat in my hand. I was not allowed to bring anything out, and I left without taking anything at all; and the next day or the day after, I went back and tried to get some of my clothes, and the house was locked, and he had placed somebody there to prevent my getting in, and he would not allow me to have my clothes at all.
    “ At the time of the purchase, I had the clothes upon me just that I came out of the house with. I, some time after—about the end of October of that year —recovered, through an order of the court, my wardrobe. At the time of the purchase, I had as clothing simply that which I walked out of the house with. I had nothing else: At that time I was not in the receipt of any money from the defendant.”
    The witness further testified that the defendant had proposed, through her attorney, that witness should go into the basement, of the house, and pack up her clothes, while he was watching what she packed up, and that she could not go into any other room whatever, to see the children or anything, only just in the basement. And she asked permission to go and pack up her own wardrobe and her own things—that she considered her own. He had taken out things from her trunk; pieces of silk, of muslin, trimmings, laces and books, and had left nothing therein ; just the mere dresses.
    The letter containing the answer to this proposal was put in evidence by the defendant. It was addressed to the defendant’s attorneys, and is as follows:—■
    Mrs. Thompson proposed to go to the house, and, with her seamstress, pack and remove her wardrobe, leaving every article disputed or claimed by Mr. Thompson, to await the adjudication of the court.
    He refuses, and insists that she may come into the front basement, agreeing not to go into any other room, and come alone at that, and pack such things as he may allow her, and leave. In case she would not consent to that, he agrees to pack up and send to her at any address, what he chooses to call her wardrobe.
    This he agrees to after she has been turned out of the house, and forbidden to return, and refused admission for over one week, and without a change of clothes during that time. She also demanded to see her children, and was refused by the person left in charge by Mr. Thompson, at the house.
    She will accept neither of the propositions, but adheres to her demand of last week.”
    Defendant moved for a non-suit, on the ground that the credit was given to the wife of the defendant after the plaintiffs had received notice from the defendant to furnish no goods to his wife on the credit of defendant.
    Also, on the ground that there is no evidence sufficient to go to the jury, as the plaintiffs have failed to show (such notice not to trust having been given) that the goods in question were necessaries.
    The motion was granted and the complaint dismissed. The plaintiffs excepted, and appealed from the j udgment.
    
      A. H. Holmes, for appellant, urged :
    I. The husband is liable for price of goods sold his wife on his credit, after notice not to furnish goods on the husband’s credit, provided the goods were necessaries, suitable to the wife’s condition in life, and the husband failed to provide them (Theriott v. Bagioli, 9 Bosw. 578 ; Ogden v. Prentice, 33 Barb. 160 ; Cromwell v. Benjamin, 41 
      Ib. 558 ; 2 Smith’s Leading Cases, 440 ; 2 Kent’s Com. 146, 147, and 148; Bright on Husband and Wife, vol. 2, p. 7).
    II. 1. The questions whether the goods were necessaries, suitable to the wife’s condition in life (the wife’s destitution), and the failure of the husband to provide them, were questions of fact for the jury, and should have been submitted to the jury (Theriott v. Bagioli, 9 Bosw. 578 ; Cromwell v. Benjamin, 41 Barb. 558 ; Brighton Husband and Wife, vol. 2, p. 8). 2. If there was legal evidence even tending to prove the affirmative of these questions, the plaintiffs were entitled to have them submitted to the jury ; but the evidence here not only tended to prove the affirmative of these questions, but was abundant to support an affirmative finding (9 Wallace Supreme Court [ U. S] 197; 17 Wallace Supreme Court [ U. S.] 657.) 3. The destitution of the wife, and the fact that the goods in question were necessaries, and suitable to her condition in life, is clearly shown. 4. The same evidence which proves the destitution and necessities of the wife, proves something more than the failure and neglect of the husband to provide for his wife’s needs : it proves Ms absolute and determined refusal to make needful provision for his wife when he knew that her destitution and need was the result of his own acts.
    
      Duer & Blayden, attorneys, and Wm. A. Duer, of counsel, for respondent, urged :
    I. A husband who provides Ms wife with necessaries is not liable to tradesmen who furnished goods to her (Cromwell v. Benjamin, 41 Barb. 558). The defendant had provided for his wife a large amount of wearing apparel. Where a husband provides his wife who lives apart from him, it is incumbent upon one who has been expressly forbidden to give her credit, in order to render the hus band liable, to show affirmatively that he did not supply her with necessaries (Mott v. Comstock, 8 Wend. 544 ; Theriott v. Bagioli, 9 Bosw. 578).
    
    II. Where the wife has a separate maintenance, and the husband pays it, he is not liable even for necessaries (Baker v. Barney, 8 Johns. 72). At the time these goods were furnished to Mrs. Thompson she had a separate maintenance. The goods were sold on August 30, and September 2. Mrs. Thompson had brought suit against her husband for a limited divorce—it had been referred to a referee to ascertain the amount of alimony to be awarded to her—the referee had made this report, and immediately upon its confirmation Mrs., Thompson had received alimony at the rate of, $50 a week from the time the referee made his report.
    III. In addition to this separate maintenance of $50 a week, Mr. Thompson did all in his power to send to his wife all the clothing which she had left behind her when she went away. He offered to send her trunks to any address she might give him—and the trunks contained Mrs. Thompson’s wearing apparel.
   By the Court.—Monell, Ch. J.

The written notice from the defendant to the plaintiffs not to furnish ' goods to’his wife on his credit, absolves him from lia- , bility for the goods in question, unless they fall under-the denomination of “necessaries,” which, notwithstanding the position of the marital relation of the d - - fendant and his wife, existing at the time, he was bmnd to furnish.

At the time the goods were furnished, an action on behalf of his wife for a limited divorce was pending, against the defendant. In it a reference had been made to ascertain what would be a suitable amount of temporary alimony, and the referee’s report, fixing the sum at fifty dollars a week, had been made, but- had not been confirmed, nor had any money been paid - on account thereof. The referee’s report was subsequently confirmed, and the alimony paid. But at the time the goods were purchased, no separate maintenance had been provided by the defendant: and whatever was subsequently done or paid, cannot have relation back so as to affect or prejudice the legal rights of the plaintiffs. '

There was, therefore, nothing in the situation of the divorce suit or of its proceedings at the time the goods were purchased, to wholly relieve the defendant from liability. She was stiilo his wife, and a sale to her of articles necessary for her use, which her husband had neglected or refused to supply, would impose the obligation of payment on him.

There was some evidence that he, a short time previously—between January and June, 1873—had furnished his wife with goods and wearing apparel, amounting to more than a thousand dollars. That fact, if it stood alone, would cast a heavy burthen upon the plaintiffs, and require them to.show that the goods in quest on were not alone “ necessary,” but that her husband had refused or neglected to furnish his wife with them. But it appears, without contradiction, that when the defendant’s wife 1 -ft his house, he refused to allow her to take w th he ; ny of her we v ng apparel and toilet articles, and she was obliged to leave with only the dress she had on. And the subsequent offer to restore her wardrobe, or a part of it, was made upon conditions which she was not bound o acc \ t.

Upon the whole case, therefore, there was enough to establish that the goods sold and delivered to the defendant’s wife were “ necessaries,” which he had refused and neglected to furnish; and I think the plaintiffs, upon that showing, were entitled to recover.

Th-> judgment dismissing the complaint should 1 e reversed and a new trial granted, with, costs to the appellants to abide the event.

Sedgwick, J., concurred.  