Barr v. Armstrong

• Decision Date: 31 March 1874
• Citation: 56 Mo. 577
• Parties: WILLIAM BARR, JOSEPH FRANKLIN and C. H. BERKING, Appellants, v. DAVID H. ARMSTRONG, Respondent.
• Court: Missouri Supreme Court

56 Mo. 577

WILLIAM BARR, JOSEPH FRANKLIN and C. H. BERKING, Appellants,

v.DAVID H. ARMSTRONG, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

J. G. Chandler, with S. T. Glover, amicus curiæ, for Appellants.

I. The facts to be proved by the wife, viz: the condition of her wardrobe, and her husband's refusal or neglect to supply her with things needful, were in their nature “secret facts,” not susceptible of proof by any other person. She was, therefore, a competent witness, notwithstanding the general rule excluding her. (1 Greenl. Ev., § 344; Ibid note 3, citing, Radcliff vs. Wales, 1 Hill, Chy. 63; Dickerman vs. Graves, 6 Cush., 308; State vs. Newbury, 43, Mo., 429.)

A contrary doctrine puts a wife absolutely in the power of a cruel, brutal or miserly husband. Who but the wife herself could possibly testify intelligently as to the deficiencies of her wardrobe, or what her husband had done or refused to do, with reference to supplying her wants?

II. The evidence as to the notice was clearly secondary and incompetent. (1 Greenl. Ev., 560; Lombard v. Ferguson, 15 Cal., 374.)

III. “Where the husband neglects to furnish his wife with necessaries, he is liable to the tradesman who furnishes them, notwithstanding he was expressly forbidden to trust her.” (Schoul. Dom. Rel., 85.)

IV. The instructions given took from the jury the right to pass upon the question of necessaries, either as to class or amount. (Schoul. Dom Rel., 78; Hall vs. Weir, 1 Allen, 261; Parks vs. Kleeber, 37 Penn. St., 251.)

V. The instructions given, assumed the burden of proof to be upon the plaintiffs; although the admitted facts establish a prima facie case in their favor, for the amount of the entire bill. The simple circumstance that husband and wife are living together, is held sufficient where nothing to the contrary intervenes to raise a presumption that the wife is rightfully making such purchases as she may deem necessary. Accordingly, if an action be brought against the husband for the price of goods purchased under such circumstances, it must be taken prima facie that these goods were supplied by his authority, and he must show that he was not responsible. (Schoul. Dom. Rel., 81; Etherington vs. Parrot, 1 Salk., 118; Holt vs. Brien, 4 B. & A., 252; McCutchens vs. McGahay, 11 Johns., 251; Tebbetts vs. Hapgood, 34 N. H., 420; Allen vs. Aldrich, 29 N. H., 73; Clifford vs. Laton, 3 Carr & Payne, 15; Frost vs. Willis, 13 Ver., 202; Rumney vs. Keyes, 7 N. H., 571.)

The instructions given assume the truth of defendant's testimony, and preclude the jury from weighing its credibility. There was no evidence whatever of the notice having been given, except that found in defendant's testimony in his own behalf; and the jury were in effect told, that on this point, as well as in his wild and contradictory statements about his wife being fully supplied, they were bound in law to believe him. But the jury alone are to judge of the credibility of the witnesses and the weight due to their testimony, and in this instance they would have been eminently justified in disbelieving the defendant, and rejecting his entire testimony. (Steamboat, City of Memphis, vs. Matthews, 28 Mo., 248; M'Afee vs. Ryan, 11 Mo., 365.)

A Reese, for Respondent.

I. The notice imposed on plaintiffs the burden of showing that, from the date of its service, Mrs. Armstrong absolutely needed the goods purchased to make her comfortable. (2 Kent, 4th Ed., 146; 40 Barb., 290; 24 U. S. Dig., 320; Kellar vs. Phillips, 25 U. S. Dig., 274.)

VORIES, Judge, delivered the opinion of the court.

This action was brought in the St. Louis Circuit Court to recover upon an account for goods sold and delivered. The account sued on consisted of various items of goods charged to have been sold at various times, commencing on the 30th of March 1869, and ending on the 30th day of Dec. 1869, amounting in the aggregate to the sum of $1071.60. The petition charged that the goods set forth in the account were furnished by plaintiffs to Laura M. Armstrong, the wife of the defendant, and at her request, and that the articles consisted of sundry articles of clothing which were necessary for her, and were reasonably worth the sum charged, etc.

The defendant states in his answer, that whether the plaintiffs furnished defendant's wife the goods mentioned in the plaintiffs' schedule attached to plaintiffs' petition at her request, defendant has no knowledge or information sufficient to form a belief, and asks strict proof. He denies any indebtedness to plaintiffs. Defendant says, that before the said alleged purchases he gave notice to said Barr, Duncan Co., (the assignors of plaintiffs) not to credit his wife on his account. Defendant avers that at and during the whole time of the said alleged purchases by his wife, between the 30th day of March and the 29th day of December, 1869, as stated in plaintiff's schedule, his wife and children were already supplied with clothing and apparel reasonably sufficient and suitable to make them comfortable at home, and to enable them to appear in reasonable order and style and condition in society, according to the real pecuniary condition of the defendant; and he denies that the articles so alleged to have been furnished his said wife were necessaries, and he denies that they were worth $1071.60, etc., and prays judgment.

The plaintiffs, in their reply to the defendant's answer, deny the notice set up in the answer, deny that defendant's wife and children were, during the time named in the answer, already supplied with clothing and apparel sufficient or suitable to their condition or otherwise by said defendant, etc.

The case was tried by a jury. Upon the trial, the plaintiffs offered in evidence to prove the issues on their part, the deposition of Laura M. Armstrong, the wife of defendant. This deposition was objected to on the part of the defendant, on the ground that she, being the wife of defendant, her evidence was incompetent against her husband, the defendant's counsel at the same time admitting that the purchases of the goods sued for, were made by Mrs. Armstrong, the wife of defendant, and delivered to her; that at the time defendant and his wife were living together at the Planters House, as husband and wife, and the defendant objected to the evidence of said witness to prove any further fact. The court sustained the objection and the plaintiff excepted. The plaintiffs then introduced evidence which tended to prove that defendant was worth in property, from three to four hundred thousand dollars; that but little of his property was productive; that his income was not large; that from the 30th of March, 1869, to the 29th of December of the same year, defendant and his family, consisting of his wife and two boys of from 8 to 10 years old, boarded at the Planters House in St. Louis, a first-class hotel; that they associated with the best of society; that Mrs. Armstrong and the children were always well clothed, and never seemed to lack for anything in that time.

The plaintiffs then introduced a dry goods retail merchant of St. Louis, to whom the bill of items contained in the account sued on was exhibited, and the witness asked to take into consideration Mr. Armstrong's condition in life, and state what was the judgment of the witness on the bill, whether it was reasonable or not? The defendant objected to the question, and the court sustained the objection, on the ground that the question was not a question for experts to give their judgment on, but that it was a question for the jury under the evidence. To this ruling of the court, the plaintiff again excepted. The plaintiff also introduced a witness, who, after examining the bill sued on, testified that the goods named in the bill were all sold to Mrs. Armstrong, and that they were such articles as are usually purchased and used by ladies in St. Louis.

The defendant was introduced as a witness in his own behalf, and testified that he had, on the 12th day of July, 1869 served on Barr, Duncan & Co. (the parties by whom the goods sued for were sold) a notice in writing; that he had at the time retained an exact copy of the notice served on them; that he had written the notice retained and the one served or delivered to them at the same time; that he had served the one on them and retained the other, marking or writing on it the word “copy”; that the two were exactly alike in every particular. The defendant's counsel then offered to read the copy or notice retained in evidence. The counsel for the plaintiffs objected to the evidence, on the ground that the original notice must be produced, or that notice to the plaintiffs to produce the original should have been given. The court overruled the objection, and exceptions were taken. The notice was then read as follows:

“St. Louis, July 12th, 1869.

Messrs. Barr, Duncan & Co. Gentlemen: I hereby give you notice that I will pay no bills contracted at your establishment by any member of my family, and you will, therefore, give no credit to any person or persons on my account, without my written order. Very respectfully, D. ARMSTRONG,”

Armstrong also testified that he had always furnished his family with every necessary required, either in food or clothing or otherwise, as the same was required, but had objected to going in debt for the reason that he was hard run for money at the time, etc.

At the close of the evidence, the plaintiffs requested the court to instruct the jury as follows: “The court instructs the jury that the legal obligation rests upon every husband to supply his wife with necessaries suitable to her situation and his own circumstances in life. The wife's necessaries are such articles as the law deems essential to her health and comfort, such as food, lodging, clothing and medical attendance. And in this case, if the jury find from the evidence that at the time the goods in question were delivered to Laura M....