
    The Higbee Co. v. Crum.
    (Decided June 20, 1927.)
    
      
      Messrs. White, Gannon S Spieth, for plaintiff in error.
    
      Messrs. Squire, Sanders <& Dempsey, for defendant in error.
   Vickery, J.

This action came into this court on a petition in error from the common pleas court of Cuyahoga county.

In the court below, the plaintiff in error was plaintiff and brought its suit against the defendant below, Olive Stafford Crum, defendant in error here, to recover a balance due on a book account amounting to $1,031.47. The petition alleged that the suit was brought upon a book account for goods sold and delivered to the defendant, that there was due a balance upon the account, and asked for judgment. A copy of the account was attached to the petition.

To this petition an answer was filed. After admitting the corporate capacity of the plaintiff company, defendant denied all and singular the allegations of the petition.

The case went to trial and resulted in a verdict for the defendant. The judgment was set aside by the court of common pleas on the ground that the judgment was contrary to law, whereupon the case came up for trial again, and, before the trial proceeded, an amended answer was filed, and, in addition to the allegations of the first answer, it contained the further allegation that, at the time of the contraction of the account for which suit was brought, the defendant was a married woman, living with her husband, A. Phelps Crum, and that the goods purchased were necessaries for the family, and that he and not she was responsible for them, or words to that effect.

A reply was filed to this second defense, the effect of which was to show that, while it might be true that defendant was a married woman, this bill was contracted by her and was charged to her, and she had promised to pay it. The jury was impaneled, and the case went to trial upon the issues as made by these pleadings.

Much evidence was introduced on both sides, and at the conclusion the court charged the jury. Whereupon the jury retired and brought in a verdict for the defendant. A motion for a new trial was made and overruled, and a judgment was entered upon the verdict. It is to reverse that judgment that error proceedings are brought, on at least three grounds, to wit:

First. That the verdict was contrary to the weight of the evidence.

Second. That the verdict was contrary to law.

Third. That there was error in the charge of the court.

We have gone over this record and heard the arguments of counsel and read the briefs, and are constrained to come to the conclusion that the case must be reversed on the first two grounds, that the verdict was contrary to the weight of the evidence and contrary to law. The second would naturally flow from the first.

We do not seriously criticize the charge of the court. It might have been couched in better language, but we think it substantially stated the law. Now it must be conceded that under the present status of the law of Ohio married women are just as capable of making contracts as are men. They can contract and be contracted with, just as though they were single. We are well aware of the proposition that, if the goods that are purchased are necessaries for the family, the husband will primarily be responsible for them, and there is no doubt'that Mrs. Crum might have had all these goods charged to the husband, in which event he undoubtedly would be responsible for them, but does it follow from that that in this case she would not be responsible? I think the evidence in this case conclusively shows that the account was opened up by her, and that all the charges were made against her account, and that this was brought to the knowledge of Mrs. Crum,, and that the goods, or most of them, were actually purchased by her. There is only one item, and that is the item of a fur coat, amounting to $295, that seems to have been purchased by Mr. Crum as a Christmas gift for his wife. All the other articles, it appears, were purchased by her. So far as it appears, this coat was charged to her, and she never made any objections thereto. It is apparent from this record that Mrs. Crum was a scion of a wealthy family and had been a society girl. Her father was and is one of the wealthiest men in Cleveland. The testimony of Mr. Higbee shows that it was out of consideration for her family that he had permitted the account to run so long; that it was in consideration of her and her family that credit was extended to her in the first instance. '

It also fairly appears in this record, we think, that Mr. Crum is not a man of means; that he is a young lawyer, whose credit might be anything but good, and it is hardly supposable that a concern like the Higbee Company would extend unlimited credit to a young man who had no means except such as a struggling young lawyer might earn.

All this goes to bear upon the question as to whether this credit was extended to her or to him. The testimony of Mr. Clyde C. Kortz, the credit man of the Higbee Company, is to the effect that the bills all showed the account to be in the name of Mrs. Phelps Crum, that the charges were made against her on slips which she had signed, many of which slips are in evidence, and that statements were sent monthly to Mrs. Crum, and the books showed that the account was on the books of the Higbee Company in Mrs. Crum’s name.

Now a contract can be made either expressly or by implication, and a married'woman can bind her separate estate as well by an implied contract as by an express contract. We think in this ease that Mrs. Crum was the person to whom this credit was extended ; that she knew the credit was being extended to her, and with full knowledge of it never made any objection to having it charged to her until after Crum had separated himself from her and had gone to parts which the lawyers say are unknown, but which I believe to be the state of Oklahoma.

I think the correspondence between Mr. Higbee and Mr. Stafford, and the testimony of Mr. Mierke, show clearly that it was expected that Mrs. Crum and not Mr. Crum would pay this debt. True, there is evidence in the record which would indicate that Crum may have paid some of these bills. That is a circumstance to be taken into consideration to the effect that the bill was his, but that is not conclusive. We think the evidence clearly rebuts the presumption that this bill was chargeable to him, and we do not understand, even if these goods were necessaries for the family, that Mrs. Crum cannot by her express contract, or by an implied' contract, make herself liable for them.

We think the testimony of Mr. Stafford, her father, was surely to the effect that she expected to pay the bills, and there is even testimony in the record whereby she promised at one time to, pay it when she sold her house. There never was a time until this suit that she repudiated or attempted to repudiate this contract.

From this whole record we are constrained to come to the conclusion that the jury had-a misconception of this case; that the verdict was clearly against the weight of the evidence; that the evidence shows defendant herself had become liable for this bill; and that the verdict was contrary to law.

For the reasons given above, the case will be reversed and remanded to the common pleas court for a new trial.

Judgment reversed and cause remanded.

Sullivan, P. J., and Levine, J.?i concur.  