Frank v. Carter

that he asked what it was, and was told the articles; that Carter said he would not pay for it; that the witness said, “You never gave us any orders not to trust your wife; ” that Carter said, “Her trunk is down at the ferry dock and she probably intends to cross over.” Carter said, “I will make her smart for this. This is a case of bigamy.” “I said, she was married before and he said yes, it is a case of bigamy.” On cross-examination this witness says: “Isold her the goods about half-past eleven and still it might have been past 12 when Waite and Carter came in. She came in with her father. They had no conversation with me except she wanted a suit and petticoat, and I guess that’s all. The bill shows. Had no conversation with them about charging the goods. Had no conversation with anybody else about charging them. I am well acquainted with Carter and have been for a long time. She has traded there with me before as Mrs. Carter. Whether she paid for what she got or had it charged, I don’t remember. Anyway she had them paid for. Mr. Howard, her father, didn’t say anything about charging them.” On redirect the witness testified that the goods in question were not paid for. Julius Prank, one of the proprietors of the store, testified that the bill was not paid, with some other incidental matters, and was subsequently recalled and testified that he had some conversation with Butterworth, who went out and tiled to reclaim the goods; that witness asked him if Carter was not good, and suggested that it was not worth while to trouble about it. Butterworth testified that he did go out and try to reclaim the goods. An interlocutory decree showing that Mary Howard Moore was incapable of entering into the marriage relation with the defendant on the 29th day of June, 1909, at which time a marriage ceremony was performed between the defendant and Mary Howard Moore, was offered and received in evidence, and a motion to dismiss the complaint on account of no liability shown was denied. The defendant then took the stand and testified as to the marriage ceremony; that he had lived with Mary Howard Moore as his wife from the date of the ceremony until the fifteenth day of May, and that on that night he learned that Mary Howard Moore had a husband ■ living from whom she had never been divorced, and that on the following morning he hitched up and drove from his home in Oswegatchie to Ogdensburg, where he swore out a warrant charging his supposed.wife with bigamy, and he tells of the steps taken to capture her before she had time to leave the country. Speaking of the time between the ceremony and the discovery of the bigamy he says: “During this time I bought things for the house and she bought things for the house. We traded some at Morristown. When I knew nothing about her not having a divorce I made no objection to her buying things. During the three years she bought what she needed. We-came lots of times to Ogdensburg. - Any little thing that was needed we-bought, and-if I got it I paid-for it, and if she wanted something she bought it. If she wanted anything she bought it. * * * All the articles that were purchased on that day from Prank’s and McGruer’s were for herself. She never done anything like that before without talking it over. * * * Prior to this I don’t know anything about her trading at McGruer’s. * * * I don’t remember getting any bill; remember getting

goods is some evidence that the goods were sold to the woman, without any reference to the defendant’s credit, and that the idea of charging them to the latter was developed after it was found that the goods were gone beyond recall. In Wanamalcer v. Weaver (176 R. Y. 76) it was held that a “husband living with his wife, who supplies her with necessaries suitable to her position and his own, or furnishes her with ready money with which to pay cash therefor, is not liable for the purchase price of other goods sold to her, of the same character as necessaries, in the absence of affirmative proof of his prior authority or subsequent sanction, the question of the wife’s agency being one of fact and not a conclusion of law to be drawn alone from the marital relation.” Here it affirmatively appears that during the three years that the woman lived in her criminal relations with the defendant “she bought what she needed. * * * Any little thing that was needed we bought, and if I got it I paid for it, and if she wanted something she bought it,” so that there does not appear to have been any holding out of this woman as being entitled to credit on the account of her husband for so-called necessaries, and there is no evidence in this case to charge the defendant with these goods. There is an attempt, in respect to the assigned claim, to show that there was a holding out of the woman as entitled to credit; that sometime in 1910 or 1911 she purchased some wall paper at the same place, but it does not appear that the defendant paid this bill. In reference to the present transaction McGruer says that he does not know Carter, but that he knew Mrs. Carter; that “she came to the store and had a conversation with me at that time. She asked me if she could get some more goods and that the previous bill was paid up and would like to get some more goods. I referred to the books and saw the old bill was paid and said she could have them. The price was $31.00 and no part of it has been paid.” Clearly there is no foundation here for claiming that the defendant had held her out as his agent; the merchant did not know Carter, and the woman came there and said she wanted goods, and he looked over the books and found that goods previously sold to her had been paid for and he told her she could have the goods. To charge the defendant for these goods is to go beyond the law. The judgment appealed from should be reversed. ' Howard, J., concurred.