Weisker v. Lowenthal

Robinson, J., delivered the opinion of the Court. 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. .

Story on Contracts, 103 ; Chitty on Contracts, 156; Bentley vs. Griffin, 3 Camp., 22. The liability of the hus ⁴¹⁷ band arising from the presumption on the part of the wife as agent, would, in such a case, be rebutted by the direct proof, showing that the goods were sold on her separate credit. In this case, evidence was offered on the part of the appellee to prove that the sale was made to his wife, who was at the time a feme covert trader. Whether it was sufficient to establish the fact, was a question properly submitted to the jury.

The plaintiffs’ first prayer was clearly erroneous, because it assumed the liability of the appellee, if the jury should find that the goods were sold by his authority and assent, thus taking away entirely from their consideration the evidence which had been offered to prove that the sale was made, and the credit given solely to the wife. If they should so find — if the credit was given to the wife, there can be no reason why the husband should be held liable, because he may have authorized or assented to the sale. In such a case, the authority given to the wife was to purchase on her sole credit, and it was so understood by the creditor at the time of the sale. The second prayer was also properly rejected.

If the goods were sold to the defendant or his agent, his liability therefor could