1 Phillipson v. Hayter, Law R. 6 C. P. 38 (1870). See Ruddock v. Marsh, 1 H. & N. 601 (1857). In this case the wife of a laborer had incurred a debt for provisions for the use of the family; and the husband was held liable, though he had supplied the wife with money to keep the house.
2 Meader v. Page, 39 Vt. 306 (1866).
3 Petty v. Anderson, 2 C. & P. 38; Clifford v. Burton, 1 Bing. 199. But see Smallpiece v. Dawes, 7 C. & P. 40.
4 Prestwick v. Marshall, 7 Bing. 565; Cotes v. Davis, 1 Camp. 485; Barlow v. Bishop, 1 East, 432.
5 Stevens v. Beals, 10 Cush. 291, denying Savage v. King, 5 Shepley (17 Me.), 301, contra.
6 Reakert v. Sanford, 5 Watts & Serg. 164.
§ 166. In the next place, as to the liability of the husband, where the articles supplied to the wife are not necessaries. Here there is no legal obligation growing out of the marital relation, as in the case of "necessaries," - and the contracts of the wife bind the husband only on the ground of her implied authority as his agent. And in such case, the presumption of law is, that the husband did not authorize or assent to her contract. It becomes, therefore, incumbent on the tradesman supplying a married woman with articles which are not necessaries, to assure himself that she is authorized thereto by her husband, since, in an action for their price, he will be obliged to prove affirmatively, that the debt was contracted on the express or implied authority of the husband.3 And it is not for the husband to prove that he has given notice to the tradesman not to trust his wife, but for the tradesman to show a state of facts which unequivocally imply that he authorized her to make the contract, or assented to it afterwards.4 Nor does it make any difference in this respect, that the tradesman is deceived by the false appearance assumed by her into a belief that she had authority to buy, or that the goods were in the class of necessaries, if by cautious inquiries he might have ascertained her real condition; for if the goods be not actually necessaries, and the husband have not authorized the purchase, he is not liable, although the tradesman was deceived.5 It is, however, the office of a jury to decide, from the facts of each case, whether they indicate an assent by the husband to the contract of the wife.1
1 Minard v. Mead, 7 Wend. 68. See Gulick v. Grover, 4 Vroom, 463 (1868). 2 Lindus v. Bradwell, 5 C. B. 583.
3 Montague v. Benedict, 3 B. & C. 636; Atkins v. Curwood, 7 C. & P. 760; Montague v. Espinasse, 1 C. & P. 357; Waithman v. Wakefield, 1 Camp. 120; Reid v. Teakle, 13 C. B. 627; 24 Eng. Law & Eq. 332.
4 Spreadbury v. Chapman, 8 C. & P. 371; Mizen v. Pick, 3 M. & W. 481; Atkins v. Curwood, 7 C. & P. 756; Barnes v. Jarrett, 2 Jur. 988; Reakert v. Sanford, 5 Watts & Serg. 164.
5 Waithman v. Wakefield, 1 Camp. 120; Atkins v. Curwood, 7 C. & P. 756; Wilson v. Burr, 25 Wend. 386.
§ 167. There are, however, certain presumptions of his assent, which arise in law; as, for instance, in cases where orders are given by her in those departments of her husband's household, which are under her superintendence; provided such orders be not excessive or extravagant in kind or quantity.2 Again, the fact that the husband sees the wife use and wear articles which are not" necessaries," and which he knows that she has bought, without disapprobation, creates a strong presumption of his assent; although if he should express his disapprobation, and a fortiori, if he should have refused to pay for similar articles before, it would be otherwise.3 Again, the same presumption of assent arises as to goods which the husband permits her to receive at the house, knowing that they are purchased by her, while they are living together,4 -and as to her contracts for the hire of servants.5 These presumptions, however, may be rebutted, - as, for instance, by proof that the wife has a separate income, in which case the knowledge of the husband that she had bought certain goods, and his permitting her to use or wear them, without expressing any disapprobation, would afford no indication of his assent to become personally liable therefor, since he may fairly suppose them to be purchased out of her own funds.6 In all such cases, however, his safest course is to return the articles to the tradesman when he can do so.7
§ 168. Cohabitation furnishes also a strong presumption of the assent of the husband, where the articles supplied are not necessaries. This affords, however, merely a presumption, which may be rebutted by proof of the contrary.1 Thus, if the evidence show that credit was given solely to the wife, or that her husband was wholly ignorant of the contract, or expressly forbade the tradesman to trust his wife, the presumption fails, and he will be absolved from liability.2 But so strong is the presumption of the assent of the husband to the wife's contract, created by cohabitation, that it has been decided, that if a man cohabit with a woman, holding her out to be his wife, he is liable for goods furnished to her during their cohabitation by a tradesman, who knew that they were not married.3 A fortiori, this would be the case, if the tradesman suppose them to be married. Moreover, if the pretended husband go abroad and leave the woman he holds out as his wife at his residence, he would be liable to tradesmen for necessaries supplied to her during his absence in like manner as if she had actually been his wife; but after his death his executor would be absolved.4 Yet if the tradesman knew their intercourse to be adulterous, the ostensible husband would not be liable, without an express promise or authorization to him or his agent.5 After their separation, however, he would not be liable for necessaries furnished to her, unless she were actually his wife, or unless he continued to hold her out as such, either expressly or impliedly, by allowing her to remain in his house.6
1 Montague v. Benedict, 3 B. & C. 635; Smallpiece v. Dawes, 7 C. & P. 40; Bentley v. Griffin, 5 Taunt. 356; Holt v. Brien, 4 B. & Al. 255; Manby v. Scott, 1 Sid. 121; Freestone v. Butcher, 9 C. & P. 643.