Taylor-Woolfenden Co. v. Atkinson

Montgomery, C. J.

Action for the price of goods claimed to have been purchased by defendant’s wife on his credit.

1. The court submitted to the jury the question of whether the goods were necessaries, and, if so, whether defendant’s wife had a right to bind him for them because of a failure on his part to furnish her with necessaries, or with the money with which to purchase them. The only testimony on the question of whether defendant furnished his wife with necessaries was his own testimony on cross-examination, to the effect that, during the 18 months covered by this account, he furnished his wife with $1,180 in cash for the purchase of clothing for herself and children (which is the class of goods here in question); that she had a weekly allowance for the purpose, which he paid and overpaid; *635 that he had always had trouble with her about running bills without his consent; and that his income did not exceed $5,000 per annum. We think this had no tendency to show such a state of facts as would give defendant’s wife the right to bind him for necessaries, and that the question should not have gone to the jury.

2. It is urged that a verdict should have been directed for .defendant, on the ground that there was no testimony that defendant’s wife had the right to act for him. There was testimony that defendant had gone to Mr. Taylor, plaintiff’s “credit man,” and asked him not to give defendant’s wife credit, and that defendant afterwards, and prior to .the running of the bill here in suit, went to Mr. Taylor, and told him that “the matter had been fixed up;” that “it was all right.” The construction of oral language is for the jury, and we think a jury would be justified in inferring from, this that there was express authority for plaintiff to sell goods to defendant’s wife on his credit. It is difficult to conceive why defendant should object to plaintiff’s giving credit to defendant’s wife individually. It is for the jury to say whether he intended to charge himself by this language. It is true that the goods were charged to Mrs. Atkinson, but there was testimony that, in all cases where the customers of plaintiff were married women, the plaintiff charged the goods to them, and not to their husbands. “ The fact that the goods are charged on the books of the seller to the person to whom they were delivered is not conclusive that they were sold upon his credit.” Larson v. Jensen, 53 Mich., at page 430 (19 N. W., at page 131), citing numerous cases.

3. Plaintiff’s ledger was introduced to prove the account. It was first shown that the entries in the ledger were made from slips, made out in duplicate by the clerks who made the sales, and one of them sent to the bundle counter, and the other to the bookkeeper. Hence it appears that delivery was not a prerequisite to the entry of the items on the ledger. It was shown that these slips were destroyed periodically, because of their bulk, and that those repre *636 senting this account had been destroyed. In view of a retrial, it is proper to say that, under the rule in Swan v. Thurman, 112 Mich. 419 ( 70 N. W. 1023 ), plaintiff would be required to prove, to the satisfaction of the jury, that no entries were made except from the slips; that no such slips were sent to the bookkeeper except when the goods, accompanied by a duplicate slip, were sent to the bundle counter; and that all goods sent to the bundle counter were delivered. The original slips are not indispensable.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.