Saks & Co. v. Bennett

• Decision Date: 19 March 1951
• Citation: 79 A.2d 479,12 N.J.Super. 316
• Parties: SAKS & CO. v. BENNETT.
• Court: New Jersey Superior Court — Appellate Division

Page 316

12 N.J.Super. 316

79 A.2d 479

SAKS & CO. v. BENNETT.

Superior Court of New Jersey Appellate Division.

Argued March 5, 1951.

Decided March 19, 1951.

James A. Major, Hackensack, argued the cause for the appellant (Major & Carlsen, Hackensack, attorneys).

Abraham Levin, Jersey City, argued the cause for the respondent.

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

BIGELOW, J.A.D.

The respondent, Saks & Company, sued Herbert H. Bennett and wife for goods sold. It recovered several judgments against Mr. Bennett for $344 and against Mrs. Bennett for $27. The former appeals.

All the articles for which judgment was rendered against the husband, were bought by the wife. To hold the husband liable, it must be shown that the wife was acting as his agent in making the purchases or that the articles were necessaries. Davis v. Freeman, 2 N.J.Misc. 79 (Sup.Ct.1924).

Neither husband nor wife, by virtue of the relationship, has power to act as agent for the other. The relationship is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority or apparent authority, may indicate it in the case of husband or wife.' Restatement, Agency § 22(b). In the case before us, Mrs. Bennett does not appear to have contracted in her husband's name. Her purchases were charged to her and not to him; for most of them she signed the sales slip in her own name alone. Nevertheless the plaintiff was not precluded from showing that the husband was an undisclosed principal. But there was no evidence that he authorized his wife to buy as his agent, the articles which are the subject of the suit, or to make him liable for the price. The judgment against appellant cannot be upheld on principles of agency as distinguished from his liability as husband for necessaries supplied to the wife.

While a husband's liability for necessaries furnished his wife, arises from his failure to perform his duty properly to support her, Wanamaker v. Ulizio, 102 N.J.L. 166, 130 A. 555 (E. & A.1925), the liability is often expressed in terms of agency. Thus it is said that for the purchase of articles of domestic use, the law regards the woman as her husband's agent. Wilson v. Herbert, 41 N.J.L. 454 (Sup.Ct.1879). When the wife procures on credit 'such things as fall within the domestic department ordinarily confided to her management, and for articles furnished to her for her personal use suitable to the style in which the husband chooses to live', her husband is Prima facie liable. Vusler v. Cox, 53 N.J.L. 516, 22 A. 347 (Sup.Ct.1891). Likewise, when she buys a radio or employs a domestic servant, he must pay. Goldberg v. Choma, 157 A. 450, 9 N.J.Misc. 1203 (Sup.Ct.1931); Auten v. Johnston, 115 N.J.L. 71, 178 A. 187 (Sup.Ct.1935).

But the husband may have a good defense for he need pay only once. 'When he has supplied his wife with those necessaries which their station in life and his financial standing entitle her to have at his hands or has furnished her with moneys sufficient to enable her to purchase them for herself, he is under no obligation to pay bills incurred by her for what would have been necessaries if he had not already supplied her therewith'. McCreery & Co. v. Martin, 84 N.J.L. 626, 87 A. 433, 434, 47 L.R.A.,N.S., 279 (E. & A.1913). Cf. Feiner v. Boynton, 73 N.J.L. 136, 62 A. 420 (Sup.Ct.1905). The McCreery case also establishes the rule that the...