Annis v. Manthey

• Decision Date: 14 April 1926
• Docket Number: October Term.,No. 29,29
• Parties: ANNIS v. MANTHEY.
• Court: Michigan Supreme Court

234 Mich. 347

208 N.W. 453

ANNIS

v.MANTHEY.

No. 29, October Term.

Supreme Court of Michigan.

April 14, 1926.

Error to Circuit Court, Wayne County; Charles B. Collingwood, Judge.

Action by Newton Annis against Oscar Manthey. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.

Fellows, Sharpe, and Steere, JJ., dissenting.

Walter M. Trevor, of Detroit, for appellant.

Johnston & McKee, of Detroit, for appellee.

McDONALD, C. J.

This action was brought to recover the sale price of a fur coat which was sold to the defendant's wife and charged to him on the 15th day of August, 1921.

The defendant is a dentist engaged in the practice of his profession in the city of Detroit, from which he derives a net income of $350 a month. At the time the coat was purchased he and his wife, Hilda Manthey, were living apart. Divorce proceedings were pending. It was the doctor's claim that he had furnished his wife all necessaries suitable to his social standing and financial worth, and that under the circumstances she had no authority to pledge his credit for the coat in question. The jury gave the plaintiff a verdict for $613.35. A motion for a new trial was made and denied. The defendant brings error alleging: (1) That the verdict is contrary to law and against the great weight of the evidence.

If a husband fails in his duty to provide his wife with the necessaries of life, she may pledge his credit therefor, and if she does so the law presumes that it was done with his assent. This presumption does not arise, however, where the parties are not living together. Neither does it arise where the articles purchased are not of ordinary household or family use. For instance, from the purchase by the wife of a diamond ring or a $500 fur coat, though under some circumstances they might be properly classed as necessaries, there would arise no presumption that they were purchased with the husband's assent. The question of prior dealings between the parties, in which the husband paid similar bills charged to him would affect the matter of presumption, but the testimony in that regard is too indefinite and unsatisfactory to be of any value. We then have a case in which, while the husband and wife were not living together, the wife pledged his credit for articles of merchandise that were not of the ordinary necessaries. In such a case there is no presumption that the husband assented to the purchase, and the burden of proof is upon the plaintiff to show that he furnished necessaries, and under such circumstances as to render the defendant liable. People v. Kellogg, 171 N. W. 410, 205 Mich. 482.

There are three elements of the plaintiff's case, all of which he was required to establish by a preponderance of the evidence. They are, first, that he sold the coat on defendant's credit; second, that the defendant had refused or neglected to provide suitable wearing apparel for his wife; and, third, that the fur coat was one of the necessaries. The first element is not disputed. In the presentation of proofs but little attention was given to the second element of the plaintiff's case, but counsel for the defendant submitted a request covering that question. The court did not give it, but instructed the jury in a way that made defendant's liability depend solely on whether the coat came within the class denominated as necessaries. He said:

‘The question is one clearly and fully for the jury to determine. First, was the coat purchased; second, was the coat of the kind and material that would comport with Oscar Manthey's income, and with the station in life which he himself assumed, and which we assume that he had designed his wife to take.'

As bearing on his liability, the defendant was entitled to have submitted to the jury the question as to whether he had been guilty of neglect of duty in refusing to supply his wife with suitable wearing apparel. If it had been left to them the jury might rightly have said that the failure to provide his wife with a fur coat in the summer time was not a neglect of duty on the part of the husband. It may be said that there was no evidence to justify the submission of that question to the jury. But in that event, the burden of proof being with the plaintiff, the defendant would have been entitled to a directed verdict.

In regard to the evidence the record is very unsatisfactory. The wife was not sworn, and no inquiry was made of defendant by either counsel as to how he was providing for his wife at the time she pledged his credit for the coat. He volunteered the statement that he was paying her alimony. He was not examined as to...