
    William F. Wenz, Appellant, v. Terrence McCann, Respondent.
    
      Liability of a husband for necessaries furnished to his family — when an agreement with a daughter to provide for the family does not discharge the husband from such liability.
    
    Upon the trial of an action brought to recover for meats alleged to have been sold and delivered by the plaintiff between April 15, 1901, and March 15, 1902, it was admitted that the goods were delivered at the defendant’s residence where he lived with his wife and children, three of whom were minors. The defendant’s wife died about December 1, 1901, and during her lifetime the orders for the meats were usually given by her, many of them in the defendant’s presence, and all moneys paid on account thereof were paid by the wife. After the wife’s death, the plaintiff continued to supply meat. It did not appear, however, who gave the orders for such meat.
    The defendant, for a defense, testified that several years prior to the trial he made an agreement with two of his adult daughters whereby they agreed to run the household, in consideration whereof he was to contribute the sum of ten dollars per week, the produce of a cow and certain garden stuff; that this arrangement continued until shortly after his wife’s death, when the adult daughters left his residence.
    It did not appear that the alleged arrangement was known to the plaintiff, nor was it shown that either of the adult daughters ever purchased any supplies for the defendant or his wife and minor children or contributed anything to their support.
    
      
      Held, that a judgment exonerating the defendant from liability should be reversed;
    That, in view of the husband’s common-law obligation to provide necessaries for his family, and of the presumption that a wife, in ordering such necessaries, acts as her husband’s agent, the testimony as to the alleged arrangement between the defendant and his adult daughters was not sufficient to defeat the ' plaintiff’s claim;
    That a husband cannot shield himself from his obligation to furnish necessaries • to his wife and minor children by making a bargain with some third^person to furnish such necessaries, where such third person neglects to perform such bargain.
    Appeal by the plaintiff, William F. Wenz, from a judgment of the County Court of Chemung county, entered in the office .of the clerk of. the county of Chemung on the 24th day of October, 1904, upon an order of said County Court, entered in said clerk’s office on the 24th day of October, 1904, affirming a judgment of the City Court of Elmira in favor of the defendant, entered on the 8tli day of March, 1904, and also from the said order upon which the judgment appealed from was entered.
    
      H. D. Wilcox, for the appellant.
    
      Lewis E. Mosher and John Deneen, for the respondent.
   Chester, J. :

■ The action Was brought to recover for- meats . alleged- to have been sold and delivered-to the defendant by the plaintiff between April 15, 1901, and March 25, 1902. On the trial the amount of the plaintiff’s claim was not disputed and it was admitted by the defendant that the goods were delivered at the place of residence of the defendant. The defendant lived with his wife and several children, three of whom were minors. His wife died the latter part of November or the first of December, 1901. So long as she lived the orders for the meats were usually given by her' and many times in his presence and all moneys paid on account were paid by her. The plaintiff kept oil supplying meat to the defendant’s family for about three months after the death of the wife and-about one-half of the amount of the plaintiff’s claim is for meats, furnished after her death. . It does not appear who gave the orders for the meats so furnished. For ,a defense the defendant testified, in substance, that he made an oral agreement six or. seven years before the trial with two of his adult daughters, whereby he. was to contribute to them ten dollars per week, the produce of a cow and all that was needed from the produce of his garden for the support of himself, his wife and his three minor children, and- for which the two daughters agreed to run the house; that they lived under this agreement for a number of years and until his wife died and that shortly after that he disagreed with the daughters and they left the house. It does not appear just when, after the wife’s death, they left, nor how much, if any, of the meats were furnished after they left. The City Court gave judgment for the defendant. This has been affirmed by the County Court and the plaintiff appeals.

There can be no question but that the goods furnished were necessaries for the defendant and those dependent upon him for support. The law casts the burden upon him to support and. maintain his wife and minor children. This was his obligation under the common law and it has not been changed by the legislation relating to married women. (Holcomb v. Harris, 166 N. Y. 257; Grandy v. Hadcock, 85 App. Div. 173.)

Mr. Justice Chase, in writing for the court in the case last cited, says: “ The liability for necessaries furnished to the family of a married man is presumptively and primarily upon the husband^ unless the wife, by express agreement, charges herself personally with the same.” There is no evidence that the wife made such an agreement in this case. Where a man is living with his wife and she orders necessaries for the family use, the presumption is that she acts as his agent. (Winkler v. Schlager, 64 Hun, 83; Lindholm v. Kane, 92 id. 369.)

The plaintiff’s case does not rest upon these presumptions alone. It was proven that many of the orders for meats were given by the defendant’s wife in his presence, and presumably by Ins consent. This was not denied by the defendant and there is no direct evidence in denial of her agency.

I think the defendant’s evidence as to the arrangement he had with his daughters falls far short of being sufficient to rebut these presumptions and overcome this proof or to defeat the plaintiff’s claim. There is no proof that the plaintiff had any knowledge of the arrangement. Nor was it shown that either of the daughters, pursuant to the arrangement or in any other way, ever purchased any supplies for the defendant or his wife and minor children or contributed a cent to their support. So far as appears, the daughters may have expended the entire ten' dollars per week for clothing, or in some other way, for their own adornment or benefit.

The defendant’s testimony, that he continued to live under that agreement for a number of years and that he had provided for his wife according to' that agreement, cannot serve to aid him, as this testimony was but the statement of his conclusions and did not prove any fact much less that the daughters had applied the ten dollars per Week as required by the agreement.

While the story the defendant told was on its face one that would naturally excite suspicion concerning its'truth, yet it may be conceded that the defendant made a bargain just as he claims he did with his daughters to contribute a specified amount per week for the support of himself, his Wife and his minor children and even that he paid that amount to his daughters for that purpose, yet that arrangement, in the absence of evidence that the daughters did in fact expend the amount for such support, will not relieve the defendant from his legal liability to pay for necessaries furnished to those dependent upon him and affords no justification for a judgment for the defendant. A husband cannot shield himself from- his obligation to furnish necessaries to his wife and minor children simply by making a bargain with some third person to furnish them. If such a bargain is not carried out, he is still liable for such necessaries so furnished.

As I understand the case of Wanamaker v. Weaver (176 N. Y. 75), relied upon by the defendant, it decides nothing counter to the principles above stated. That was a case where a wife who was abundantly supplied' by her husband, not only with ready cash, but. with similar articles to those purchased, went to a city, distant from her home, and purchased goods from a stranger with whom she had never traded, without the knowledge or consent of her husband, and the court held that the husband was not liable.

The judgment should be reversed, with costs to the plaintiff in all the courts.

All concurred.

Judgment reversed, with costs to the plaintiff in all the courts.  