Noel v. O'Neill

• Court: Maryland Supreme Court
• Citation: Noel v. O'Neill, 128 Md. 202, 97 A. 513 (Md. 1916)
• Decision Date: 04 April 1916
• Docket Number: 8.
• Parties: NOEL v. O'NEILL.
• Writing for the Court: BRISCOE, J.

97 A. 513

128 Md. 202

NOEL v. O'NEILL.

No. 8.

Court of Appeals of Maryland

April 4, 1916

Rehearing Denied May 17, 1916.

Appeal from Superior Court of Baltimore City; Morris A. Soper Judge.

Action by Thomas O'Neill against Sarah E. Noel. From a judgment for plaintiff, defendant appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

J. Kemp Bartlett, Jr., and J. Kemp Bartlett, both of Baltimore, for appellant.

B. H Hartogensis, of Baltimore, for appellee.

BRISCOE J.

The object of this suit is to recover the sum of $905.19 for goods and merchandise alleged to have been sold and delivered by the appellee to the appellant. The plaintiff below, and the appellee here, conducts a retail department store, in the city of Baltimore, and an itemized account, filed with the declaration, shows the specific articles and goods alleged to have been sold, and the various dates upon which they were delivered, and remaining unpaid for. The defendant is the widow of Edgar M. Noel, late of Baltimore city, deceased, and it is contended upon her part that she is not liable because the goods were sold and purchased by the wife in the lifetime of the husband, upon his credit and by his authority and assent, and not upon her separate credit. The case was tried before the court below sitting as a jury, and from a judgment in favor of the plaintiff, the defendant has appealed.

The questions for our consideration are presented by a single exception, and that is to the rulings of the court in granting the plaintiff's first prayer as modified, and in rejecting the defendant's first and second prayers. The plaintiff's second and third prayers were refused.

The important question in the case is this: Were the articles and goods charged in the two accounts filed with the declaration sold and delivered upon the credit of the husband or the wife? The well-established rule of law upon this subject is stated by Judge Robinson in Weisker v. Lowenthal, 31 Md. 413, to be as follows:

"The liability of the husband for goods sold to the wife, upon his credit, and by his authority, or assent, either express or implied, cannot be questioned. In such cases, she becomes his agent, and the principles of law incident to that relation necessarily attach. If, however, the goods are sold to the wife, upon her credit solely, the husband will not be liable, although the sale may have been made with his knowledge and by his assent."

While it will be seen that the statutes in this state, upon "Husband and Wife" enlarge the rights and privileges of the wife, they do not restrict the common-law liability of the husband in many respects. By section 21, art. 45, of the Code of Public General Laws, it is provided that nothing in this article shall be construed to relieve the husband from liability for the debts, contracts, or engagements which the wife may incur or enter into upon the credit of her husband, or as his agent, or for necessaries for herself or for his or their children, but as to all such cases his liability shall be or continue as at common law. The language of section 5, art. 45, of the Code that the husband would not "be liable upon any contract, made by his wife in her own name, and upon her own responsibility," clearly does not apply to contracts made by a wife as agent for her husband, or in those cases mentioned in the statute, where his liability is continued, as at common law. Section 5, art. 45, Code; section 21, art. 45, Code; Lyell v. Walbach, 113 Md. 378, 77 A. 1111, 33 L. R. A. (N. S.) 741; Meyer v. Frenkil, 116 Md. 418, 82 A. 208, Ann. Cas. 1913C, 875; Jones v. Gutman, 88 Md. 355, 41 A. 792; Weisker v. Lowenthal, 31 Md. 413. In Wilson v. Herbert, 41 N. J. Law, 461, 32 Am. Rep. 243, it is held:

"When husband and wife are living together, and the wife purchases articles for domestic use, the law imputes to her the character of an agent for her husband, and regards him as the principal debtor. She may contract for such articles as principal, and assume the responsibility of a principal debtor. But to fix upon her such a liability, it must affirmatively appear that she made the purchase on her individual credit. There must be either an express contract on her part to pay out of her separate estate, or the circumstances must be such as to show clearly that she assumed individual responsibility for payment, exclusive of the liability of the husband."

There are numerous other cases bearing upon this subject, and many of them will be found reviewed, in an elaborate note to Wanamaker v. Weaver, 176 N.Y. 75, 68 N.E. 135, reported in 65 L. R. A. 529, 98 Am. St. Rep. 621.

In the present case the articles and goods charged in the accounts were sold and purchased between December 12, 1910, and the date of the husband's death, in November, 1912, and consist of articles of necessary wearing apparel and other necessary household goods for the use of the wife and her children. In the course of the trial there was evidence offered on the part of the plaintiff to prove that the goods were sold and delivered upon the credit of the wife alone. On the other hand, the evidence on the part of the defendant was in direct conflict, and tended to sustain the theory of the defendant's case that the goods were purchased by the wife as agent of the husband, and were sold solely upon the credit of the husband. Upon this state of case, the question at issue was clearly one of fact, to be submitted to the court, sitting as a jury, upon proper instructions, as to the law controlling the case.

The plaintiff's first prayer, and the only one granted in the case, was manifestly erroneous. It was as follows:

Plaintiff prays the court to instruct itself, sitting as the jury, that if it shall find that credit was given to Sarah Noel, the defendant [as appears from the books of the plaintiff], at the beginning of the transaction for which suit was brought, and that the goods were sold and delivered to the said Sarah E. Noel and charged to her on her own account, then the court, sitting as a jury, shall find a verdict for such an amount as it finds to be due by her for sales and deliveries, so made to her with interest in the discretion of the court sitting as a jury.

The vice of the prayer consists: First, in its failure and omission to submit the question of the agency vel non of the wife; and, secondly, that the charging of the goods, as appears from the books of the plaintiff to the wife on her own account, was conclusive of the...