
    Kind v. Bodek, Appellant.
    
      Husband and wife — Goods furnished on credit of wife — Diamond pin — Necessaries.
    In an action against a wife to recover the cost of a diamond bar pin, a judgment for plaintiff will be sustained, where the testimony of a clerk of plaintiff, although contradicted by defendant, was to the effect that defendant had purchased the ring herself and told him “to charge the pin to her” and that she said “to charge and send it to her.”
    Argued Oct. 15, 1917.
    Appeal, No. 181, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., Dec. T., 1916, No. 433, for plaintiff on case tried by the court without a jury in suit of Frank Kind, Oscar Kind and Philip Kind, trading as S. Kind & Sons, v. Mrs. Joseph J. Bodek.
    Before Oelady, P. J., Poe-tee; Henderson, Head, Kephart, Trexler and Williams, JJ.
    Affirmed.
    Assumpsit to recover the sum of $215, the cost of a diamond bar pin, alleged to have been sold and charged to the defendant.
    Knowles, J., who tried the case without a jury summarized the evidence as follows:
    “The plaintiffs testified that the defendant purchased the diamond bar pin upon her own credit, giving the salesman instructions to that effect, and that the merchandise was delivered to the defendant and charged to her account, although her husband had previously opened an account under which he had purchased goods to the amount of about $7.00 and subsequently had paid for the same; that through an error the bill and statements were sent to the defendant’s husband, and likewise certain letters demanding payment of the bill; that after efforts had been made to collect the bill from the husband, Joseph J. Bodek, covering a period of about six months, the plaintiff referred to the original sales slip and discovered that a mistake had been made in sending the bill, statements and letters to the husband, and ■ that after consulting their attorney they decided to bring an action against the defendant, Mrs. Joseph J. Bodek, in an attempt to collect the amount due.
    “The defendant testified she never bought the diamond bar pin upon’her own credit; that her husband had ordered it and that she was with him when the purchase was made. Also, she testified that on a previous occasion she had purchased a bracelet from the plaintiffs which her husband did not like when she exhibited it to him, he demanding, it should be returned and that something else should be purchased.
    “In rebuttal the plaintiffs’ salesman testified that the defendant was alone when the diamond bar pin was purchased.”
    Judgment for plaintiff for $230. Defendant appealed.
    
      December 13, 1917:
    
      Error assigned was in entering judgment for plaintiff.
    
      Lionel Teller Schlesinger, with him Charles J. WeisSj, for appellant.
    Even though the pin had been charged to the defendant, that of itself would not have been sufficient to hold her liable: Moore v. Copley, 165 Pa. 294; Clothier v. Wolff, 66 Pa. Superior Ct. 328.
    A married woman cannot be made liable by implication.
    
      John 8. Oberly, for appellees.
   Opinion by

Williams, J.,

In an action to recover the price, of a diamond bar pin alleged to have been sold to a wife upon her individual credit, defendant denied undertaking to pay for it, and alleged it was bought upon her husband’s credit.

Plaintiffs’ clerk testified: “Q.- — Do you remember selling the defendant, Mrs. Bodek, anything? A. — Yes, sir. Q. — You sold this diamond bar pin? A. — Yes, sir...... The understanding with me was the pin was to be charged and sent to her......Q. — Did she say anything to you about it? A. — To charge the pin to her. Q. — Did she say that? A. — Yes, sir. Q. — ......Now did she or did she not say that? A. — She said to charge and send it to her.”

The court found for plaintiffs, refused judgment n. o. v., and from the judgment entered upon the finding we have this appeal.

’ Appellant contends that she was presumptively acting as her husband’s agent in the transaction, and cites, inter alia: Moore v. Copley, 165 Pa. 294; Brouse v. Oliger, 36 Pa. Superior Ct. 399; and Clothier v. Wolff, 66 Pa. Superior Ct. 328; to which we might add: McCreery v. Scully, 67 Pa. Superior Ct. 524. This line of cases has two distinguishing features. There was no evidence that the wife undertook to pay, and the goods sold were family necessaries. Here we have express testimony that defendant undertook to pay, and no evidence to show the article purchased was a family necessary. While plaintiffs’ evidence is in some respects inconsistent, this inconsistency was for the trial judge whose finding is conclusive.

The judgment is affirmed.  