
    Edward P. Hatch, Appellant, v. John Leonard, Respondent.
    Pleading — Sufficiency of Complaint in Action for Necessaries Furnished Wife. A complaint in an action to recover for necessaries furnished to a wife is sufficient if it contains allegations which, if alleged in a declaration at common law, would have stated a cause of action for goods furnished. The fact that it also alleges, in a case where the defendant and his wife were living separate and apart from each other, that the purchase was made by her as his agent, will not preclude a recovery without proof of an express agency, and the exclusion of evidence tending to show that the articles furnished were necessaries for the wife and children, on the ground that it tended to prove a different cause of action, is reversible error.
    Hatch v. Leonard, 38 App. Div. 128, reversed.
    (Argued December 7, 1900;
    decided February 1, 1901.)
    
      Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 17, 1899, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.
    The complaint alleged that “ between October 6th, 1896, and December 10th, 1896, plaintiff, doing business as aforesaid, sold and delivered to defendant, and at his request, certain merchandise, said sale and delivery being to, and said request and promise to pay therefor being made by the wife of defendant, defendant’s agent, and said merchandise, to to ■ wit, dry goods, being of the value of three hundred and and thirty-five 85-100 ($335.85) dollars, which sum defendant promised to pay therefor to plaintiff, as aforesaid. That no part of said sum has been paid.”
    All of the allegations of the complaint were put in issue by the answer, the fifth paragraph of which reads as follows: “ For a further separate and distinct defense defendant alleges that at all the times mentioned in said complaint, and for many years prior thereto, defendant and his said wife had and do now live separate and apart from each other, and that during all of said times defendant reasonably supplied her with means to obtain a home with the usual comforts, necessaries and support, and that of her children.”
    Upon the trial it appeared that the defendant and his wife had lived separate and apart from each other for a number of years, and plaintiff attempted to show that the articles furnished to defendant were necessaries for the wife and her children, but the court excluded the evidence, holding that it was not admissible under the complaint, because it tended to prove an entirely different cause of action from that alleged therein. Afterwards the complaint was dismissed for want of proof, and the judgment entered thereon was affirmed at the Appellate Division.
    
      Edward W. S. Johnston and Henry Tompkins for appellant.
    The complaint alleging agency of his wife for the defendant was sufficient to admit proof that goods purchased by the wife from the plaintiff were necessaries for her and for their minor children and the trial court erred in rejecting such proof. (Koch v. Bissell, 20 App. Div. 6; Raymond v. Cowdrey, 19 Misc. Rep. 34; Hartjen v. Ruebsamen, 19 Misc. Rep. 149; Bloomingdale v. Brinckerhoff, 2 Misc. Rep. 49 ; Ehrich v. Bucki, 7 Misc. Rep. 118 ; Comstock v. Green, 88 Hun, 64; Baker v. Barney, 8 Johns. 72; Pomeroy v. Wells, 8 Paige, 406; Henry v. Betts, 1 Hilt. 157; Seybold v. Morgan, 43 Ill. App. 39.)
    
      Brainard Tolles, Edward Percy Hamlin, and George W. McAdam for respondent.
    The cause of action alleged in the complaint was one which could only be sustained by proof of actual or apparent authority of the wife to act as agent for her husband. (Green v. Disbrow, 56 N. Y. 334; Griffin v. Griffin, 47 N. Y. 134; Daubney v. Hughes, 60 N. Y. 187; Rogers on Dom. Rel. § 247; Bostwick v. Brower, 22 Misc. Rep. 709; Black v. Bryan, 18 Tex. 453; Cunningham v. Reardon, 98 Mass. 538 ; Bergh v. Warner, 47 Minn. 250; Mitchell v. Treanor, 11 Ga. 324; Sturtevant v. Starin, 19 Wis. 285 ; Rea v. Durkee, 25 Ill. 414.)
   Parker, Ch. J.

We have decided at this term of court that in an action to recover against an infant for goods sold it is not necessary to allege in the complaint that the articles furnished were necessaries. As a foundation for that decision we called attention to the practice as it obtained at common law in an action to recover for necessaries furnished an infant, which was that the declaration need contain only counts as in an action for debt, for board and lodging, or goods furnished. (Goodman v. Alexander, 165 N. Y. 289.) Precisely the same rule applies to a complaint in an action to recover for necessaries furnished to a wife. This complaint alleged that the plaintiff “ sold and delivered to defendant at his request certain merchandise * * * to wit, dry goods, being of the value of three hundred and thirty-five 85-100 ($335.85) dollars, which sum defendant promised to pay therefor to plaintiff, as aforesaid. That no part of said sum has been paid.” It will be observed that the complaint alleges a sale of goods to defend-, ant, and if it contained no reference whatever to defendant’s wife it could not be questioned that plaintiff could prove under it that the goods were purchased by the defendant’s wife for the use of herself and her children, and that they were necessaries within the Goodman Case (supra). But as the plaintiff alleged more in the complaint than was necessary, namely, that the purchase was made by the defendant’s wife as defendant’s agent, it is claimed that the plaintiff cannot recover except by proving an express agency and that evidence tending to show facts from which the law will imply an agency is an attempt to prove a different cause of action. A brief examination will show that this position is not well taken. It should be noted that as to the matter of agency the complaint simply alleges that the wife was the defendant’s agent; it does not allege that the defendant had expressly authorized her to make the purchases, but instead the draftsman was con-: tented with alleging the fact of agency, and the allegations of the complaint are satisfied, therefore, by proving either an express agency or the facts from which the law implies an agency. An express agency was not proved ; for it does not appear from the evidence that the defendant ever authorized his wife to make any of the purchases, nor does it show that they Avere living together as husband and wife, but instead the fact distinctly appears that they were living separate and apart from each other. Nevertheless it Avas possible that the plaintiff could have proved facts from Avliich the law would imply an agency on the part of the Avife to purchase these goods for her husband. For notAvithstanding the separation of husband and wife, the former is bound to support the latter together with her children in the absence of either an agreement or a decree of the court relieving him from that burden, and in such a case if the wife purchases only those things which may be held to be necessaries, the Iuav implies an agency on her part to make the purchase on the husband’s credit.

The authorities cited as holding otherwise, as I read them, are not at all in conflict with the views so far expressed, but, on the contrary, confirm them.

The case of Montague v. Benedict (3 B. & C. 631), so far as appears from the report, was an action for jewelry furnished to the wife of the defendant. The complaint was the ordinary one in assumpsit for goods sold and delivered. The plea was the general issue. There the plaintiff was nonsuited, it is true, but not until after the evidence on both sides had been introduced, and the real question involved was whether, under the evidence adduced, the goods were necessaries.

In Clifford v. Laton (3 C. & P. 15) it appeared that the defendant’s wife, who personally ordered the goods, was living apart from her husband. The complaint was for goods sold and delivered, and the plea was the general issue. Ho objection was made as to the sufficiency of the declaration.

In Baker v. Barney (8 Johns. 72) the defendant had parted from his wife by consent, but, nevertheless, was held liable in an action for gtiods sold and delivered, being necessaries sold to the wife.

In Cromwell v. Benjamin (41 Barb. 558) the action was brought to recover the value of a bill of goods furnished by the plaintiff to the defendant’s wife and children. It was there said : “If the liability of the husband for necessaries furnished to his wife rested solely on the ground of an agency in fact, express or implied, it would be somewhat difficult to sustain the report of the referee in this case. * * * But the husband may be liable for necessaries furnished to the wife, in certain cases, though the existence of an agency or assent, express or implied in fact, is wholly disproved by the evidence, and this upon the ground of an agency implied in law, though there can be none presumed 'infact.”

The plaintiff, claiming that the facts existed in this case from which the law would imply an agency on the part of the wife to purchase the góods in question, attempted to prove such facts, but they were excluded by the court on the ground that they were not admissible under the pleadings, and the exceptions taken to such rulings entitle the plaintiff to a reversal of the judgment.

Gray, J.

(dissenting). The complaint alleged that certain dry goods were sold and delivered between October 6, 1896, and December 10, 1896, to defendant and at his request; -x- * -x- ga]e an(j ¿elivery being to, and said request and the promise to pay therefor being made by the wife of defendant, defendant’s agent.” The answer denied the delivery of the merchandise at plaintiff’s request; or that the defendant’s wife was his agent, or had any authority to purchase the goods for him. When the trial was reached, the plaintiff’s counsel, in his opening, stated that defendant and his wife had not been living together for some eight years prior to the sale of the goods. That fact was also testified to by defendant’s wife, called as plaintiff’s witness, and, further, she testified that during that period the defendant had been making her a monthly pecuniary allowance. After proving the delivery of the goods to the defendant’s wife, plaintiff’s counsel offered no evidence to prove any agency for, or authority from, the husband ; but he sought, by the testimony pf the wife, to show that the goods furnished were necessary for her use or comfort and that of her children. This testimony was excluded, upon the defendant’s objection that the action was not brought to recover for “ necessaries,” but upon the idea of an agency in the wife to bind her husband.

At the conclusion of the plaintiff’s case, a motion was made to amend the complaint, so as to allege that the goods were necessary for the defendant’s wife and children; which was denied, upon the ground that it would change the cause of action. The defendant’s motion for a dismissal of the complaint, upon the ground that no agency, either express or implied, had been established, was granted.

I do not see how Goodman v. Alexander is controlling. That was an action against the infant to whom the goods were sold.

The causef of action stated in this complaint was one-depending upon the allegation of the agency of the defendant’s wife. That was the issuable fact and, if it could be established by evidence, the allegation was sufficient; within the requirement of the rule of pleading that the facts are to be stated, which call into operation the rules of law imposing a duty upon the defendant and the consequent liability for his default. Ho attempt, however, was made upon the trial to establish such an agency. Ho proof was excluded, which tended to show that the defendant’s wife was, expressly or impliedly, authorized to contract for him. The evidence, which was excluded by the trial judge, was offered to show that the articles were necessary to her support and comfort, or to that of the children; with the view, presumably, of sustaining the right of the plaintiff to recover for supplying what the defendant was in duty bound to supply. That was quite a different theory of liability and one which was not suggested by the complaint. If the plaintiff’s right of recovery rested' upon such a ground, then it was incumbent upon him to state in his complaint the facts; in order that the defendant might be apprised of what he must meet upon the trial. To seek to charge a defendant with a liability for the acts of his agent is one thing and to seek to charge him with a liability arising out of his non-fulfillment of some social duty, or obligation, implied by the law, is another thing. They constitute different cause? of action and necessitate different methods of proof. If, by resort to legal fictions, the wife may be regarded as her husband’s agent and invested with an implied authority, as such, to bind him in contracting for necessaries, which he fails to supply, still, in such a case, the rules of pleading would not, in my judgment, be satisfied by stating the mere legal conclusion, without the facts from which it is asserted. But, as that fiction of agency, essentially, depends tipon the cohabitation, or the living together, of the parties, it was, at once, destroyed by the statement of the plaintiff’s counsel, upon the opening of the trial, that they had been separated for several years; a fact subsequently established by the plaintiff’s proof. Therefore, the case was one where the plaintiff could not prove his allegation of an agency and, in lieu of that, sought to recover upon another ground; namely the liability of a husband for necessaries supplied to his wife.

Whatever presumption of authority in the wife is to be inferred from cohabitation, her separation from her husband, necessarily, negatives that presumption. While they live together, when she purchases necessaries for herself, or family, the law will presume that she had the authority of her husband for doing it and she is privileged to pledge the credit of her husband. It is the cohabitation, or living together of the parties, in their marital relation, upon which the law founds the dut}*- of the husband and, in the case of his neglect to perform it, sustains the right of another to recover for supplying necessai’ies to his wife. The principle is then applicable of an implied authority in her to bind her husband. (See Montague v. Benedict, 3 B. & C. 631; Blowers v. Sturtevant, 4 Denio, 46 ; Cromwell v. Benjamin, 41 Barb. 558 ; Earnes v. Sweetster, 101 Hass. 78; Reeve’s Domestic Relations [4th ed.], pp. 114, et seq.)

Whatever the implied authority of the wife to bind her husband in the purchasing of such necessaries as are reasonable, in view of her social status,- or condition, the separation, or non-cohabitation, of the parties essentially changes the legal situation. If the separation is not due to her misconduct, the husband will continue to be bound to furnish her with those things, which are reasonably necessary for her, or their children, and, if he fails in that respect, she will be entitled to a general credit to that extent; but the theory, or implication, of any agency in her is negatived by the fact of the separation. If she is not expressly authorized, as any other person might be, to act as his agent; or, if her con tracts are not recognized and ratified by him, his liability must rest upon a different ground. It must rest upon the duty which the law has always recognized as- being imposed upon him, by virtue of their marital relation, to supply her with what she needs in her condition of life. His failure to perform that which law and duty require of him, confers upon her authority to act, to the extent that it may be necessary to provide herself and her family with the reasonable necessaries of life.

In applying these principles to the case at bar, we see, in view of the separation of the defendant and his wife, that the presumption of any agency in her to make him liable upon her contracts for necessaries was negatived. She was in no sense his agent. If he was liable at all, it was because of a state of facts, which it was incumbent upon the plaintiff to allege. It is the office of the complaint to state concisely the facts constituting the plaintiff’s cause of action, in order that the defendant may he prepared for the trial of the issue tendered. I think the trial judge committed no error in refusing to permit the plaintiff to amend his complaint and in nonsuiting him for failure of proof. However liberal the construction, which the Code of Procedure permits to be given to the pleadings, in the interest of substantial justice, the rule, that a party, who comes into court with one cause of action, cannot recover on another and different one, is unchanged. The power of the trial court to amend upon the trial is limited to a case where the amendment does not change, substantially, the claim or defense. (Code of Civ. Proc. secs. 519, 723; Southwick v. First Nat. Bank, 84 N. Y. 420; Reed v. McConnell, 131 ib. 425.) If the plaintiff’s allegation is unproved in its entire scope, upon which he rested his right to recover, there is a failure of proof and no judgment in his favor could stand.

I think the judgment should be affirmed.

Martin, Cullen and Werner, JJ., concur with Parker, Ch. J., for reversal; Bartlett and Vann, JJ., concur with Gray, J., for affirmance.

Judgment reversed, new trial granted, costs to abide event.

Wilber v. Wilber, 45 App. Div. 158, affirmed.  