Denver Dry Goods Co. v. Jester

• Decision Date: 01 November 1915
• Docket Number: 8372.
• Parties: DENVER DRY GOODS CO. v. JESTER.
• Court: Colorado Supreme Court

152 P. 903

60 Colo. 290

DENVER DRY GOODS CO. v. JESTER.

No. 8372.

Supreme Court of Colorado

November 1, 1915

Error to County Court, City and County of Denver; William C. Hood Jr., Judge.

Action by the Denver Dry Goods Company against M. H. Jester. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Everett Owens and George B. Struby, both of Denver, for plaintiff in error.

McKnight & Henry and C. A. Ferguson, all of Denver, for defendant in error.

WHITE J.

The question involved in this action is whether the Denver Dry Goods Company, plaintiff in error, may recover of M. H Jester, the defendant in error, the value of certain goods which it sold to his wife without his knowledge or consent and while the Jesters were living separate and apart. Plaintiff in error claims that when the goods were sold the Jesters were living apart by mutual consent, and that such goods were necessaries within the meaning of the law, and that the husband had failed to supply his wife with the same or make any provision for her support. The defendant in error contends that the goods were not necessaries, and that the living apart was not by mutual consent, but because the wife was guilty of violation of her marital duties and obligations, entitling the husband to a divorce, and for which he was, at the time the goods were sold, prosecuting a cause of action which subsequently resulted in a decree in his favor.

As the Jesters were not living together as a family in fact, at the time the goods were sold, it is conceded that the statute (section 3021, Rev. Stat. 1908) relative to family expenses has no application. Gilman v. Matthews et al., 20 Colo.App 170, 179, 77 P. 366. This is also true as to the statute on the subject of alimony, etc., and the power of the courts in that regard. The controversy is therefore controlled by the principles of the common law. The cause was tried to the court without a jury, and judgment entered in favor of defendant in error. Neither special findings of fact nor declarations of law were made, and an examination of the evidence fails to show that the court had an erroneous conception of the law or that the judgment is wrong. On the contrary, there is a fair quantum of proper evidence to warrant the conclusion that Mrs. Jester was guilty of offenses against the marital relation that entitled her husband to a divorce, and that this was the effective cause of their...