
    Ponder v. Morris & Brothers.
    
      Assumpsit.
    
    (Decided July 2, 1907.
    44 South. 651.)
    1. Hushand and Wife; Family Expenses Sales; Action for Price; Sufficienoy of Complaint. — A complaint which alleges that plaintiff delivered goods to defendant’s family at the request of defendant’s wife, for their use and consumption, such goods beind sold to defendant and delivered on his assent, sufficiently shows, as against demurrer, that the husband authorized the delivery of the goods-to his family and that they were delivered at his request.
    2. Same. — A complaint alleging that defendant’s wife represented to the plaintiffs that her husband had a good position and asked for credit on that basis, and upon such representation plaintiff delivered to defendant’s wife goods for the use of the family, which were sold on the account of the husband, and sold and delivered with his assent, sufficiently shows, as against demurrer, that the delivery of the goods to his family was authorized by the husband and that they were delivered at his request.
    3. Same; Liability of Husband for Supplies. — The common law liability of the husband for necessary comforts and supplies furnished the wife and family, suitable to their condition and degree in life, is not abrogated by the statute authorizing married women to contract for themselves.
    4. Courts; City Courts; Review of Finding. — Although the act establishing the city court of Birmingham provides that the conclusion of the trial court, sitting without a jury, upon the evidence, may be reviewed by this court without any presumption in favor of the finding of the lower court, this court cannot disregard the fact that the trial court heard the witnesses in person, and had better opportunity to determine what weight should be accorded the evidence.
    Appeal from Birmingham City Court.
    Heard before Hon. C. W. Ferguson.
    Action by D. W. Morris & Bro. against M. A. Ponder. Prom a judgment for plaintiffs, defendant appeals.
    Affirmed.
    This was an action by D. W. Morris & Bro. and the individual members composing the partnership against M. A. Ponder. The first count was for balance due on goods, wares, and merchandise, sold and delivered to defendant in 1902. The second count was for balance due on account of goods, wares and merchandise sold and delivered to defendant’s family, at the request of. defendant’s wife, for their use and consumption, during the years 1901 and 1902; said goods being sold to defendant and sold and delivered on his assent. The third count was for the reasonable market value of said goods sold and delivered. The fourth count alleges that defendant’s wife came to plaintiffs, and represented to them that her husband was working and had a good job, and asked for credit, and by virtue of said representation said plaintiffs delivered to defendant’s wife goods for the use of their family, which were sold on the account of the husband and sold and delivered with his assent. The demurrers raise the question as to whether •the counts showed an authorization by the husband of the delivery of the goods to his family, and also that the count failed to show that the goods were delivered at the request of the husband. There was some evidence tending to show that the wife was a free dealer, and that she contracted on her own account for these goods.
    Frank S. Andress, for appellant.
    The fact that the goods were furnished and charged to her is sufficient to show prima facie that the credit was given the wife and not the husband. — Pearson v. Barrington, 32 Ala. 237; CP Conner v. Chamberlain, 59 Ala. 431; Gayle v. Marshall, 70 Ala. 523. Before the action can he maintained against the husband for necessities furnished the wife, it must appear that the husband refused or neglected to supply the necessities and the burden is on him who asserts it. — Cunningham v. Rearden, 98 Mass. 538; 101 Mass. 78; 114 Mass. 424. The wife had full legal capacity to contract. — Section 2525-2527, Code 1896. The common law liability of the husband for necessities and suitable comforts is rested upon the assumption that credit was given to the husband and not to the wife, and that the purchase was made with his implied assent.- — Gafford v. Dunham, 111 Ala. 553; Hughes v. Chadwieh, 6 Ala. 651, and authorities supra. The husband will not be held liable for goods purchased by her on his credit without his previous authority or subsequent sanction, where he suitably supplies his wife with necessities, or with money to purchase them. — 15 A. & E. Ency. of Law, 82.
    
      J. T. Lowery, and Lowery & Moore, for appellee.
    Tbe husband is bound by common law to support bis wife and family. — 9 A. & E. Ency. of Law, 815. Tbe husband is liable under tbe common law, for necessities and suitable comforts furnished bis family, where tbe credit is given to him with bis implied assent. — Hughes v. Cliadmolc, 6 Ada. 651: Pearson v. Darrington, 32 Ala. 231; O'Conner v. Ghamberla/in, 59 Ala. 431; Gayle v. .Marshall, 70 Ala. 522; Gafford v. Dunham, 111 Ala. 551.
   DOWDELL, J.

Tbe demurrer interposed to tbe amended complaint was without merit.

Tbe case was tried by the court without tbe intervention of a jury. Tbe testimony of tbe witnesses was delivered ore Ion us. Tbe evidence was in conflict. While, under l he practice act of the city court of Birmingham (Acts 1888-89, p. 998, § 11), tbe conclusions and judgments of the trial court upon tbe evidence may be reviewed on appeal without any presumption in favor of tbe ruling of tbe court below on tbe evidence,' yet this court should not disregard tbe fact that tbe trial court, in having tbe witnesses in person before it, bad better opportunity in determining what weight should be accorded to tbe testmony of tbe witnesses, respectively.

Notwithstanding tbe wife, under our statute, may contract and be contracted with, and be sued upon such contracts, still this does not take away tbe common-law liability of the husband for necessary comforts and supplies furnished tbe wife, suitable to their condition and degree in life. — Gafford v. Dunham, 111 Ala. 551, 20 South. 346.

There was evidence tending to support every essential averment in the complaint, and while there is a conflict as to whom tbe credit was given, whether to tbe wife or to tbe husband, and as to whether the account Lad been paid or not, we are not prepared upon the whole evidence to say that the trial court, in its judgment and conclusion, was in error. The judgment appealed from will be affirmed.

Affirmed.

Tyson, C. J., and Anderson and Denson, JJ., concur.  