Hazard v. Potts

The action is to recover the sum of $112 for services rendered by the plaintiff’s assignor, Emory M. Wadsworth, M. D., and Stuart H. Benton, as physicians. The pleadings were oral. The defendant is a married woman having a husband and two children, and, although her husband was joined with her as a party defendant, she alone defended the action. The answer was a general denial, coverture, and that the plaintiff was not the real party in interest.

'At the beginning of the trial, the defendant’s counsel admitted “that the plaintiff’s assignors rendered for the defendant Robert Potts and his family medical services of the reasonable value of $112, no part of which had been paid, and that they were rendered to the defendant Robert Potts and his family,” and the only question litigated was whether the defendant had incurred a personal liability for the services in suit. The justice resolved the conflict of evidence in favor of the plaintiff for the full amount claimed, and the defendant appealed to this court.

The sole question in the case is whether the defendant is liable for the services rendered. The liability for such services is presumptively and primarily upon the husband, unless the wife, by express agreement,' charged herself personally with the same. Webber v. Spanhake, 2 Redf. Sur. 258; Estate of Mrs. Shipman (Sup.) 6 N. Y. Supp. 276 ; Hallock v. Bacon (Sur.) 19 N. Y. Supp. 101 ; Matter of Smith, 18 Misc. Rep. 141 , 41 N. Y. Supp. 1093 ; Lindhoim v. Kane, 92 Hun, 369 , 36 N. Y. Supp. 665 . Therefore, in order to charge the defendant with liability, it was incumbent upon the plaintiff to prove that she undertook liability, and that such services were rendered upon her credit.

The evidence shows that the services were rendered upon the request of different members of the defendant’s family; but, even if the defendant had requested the rendition of any of them, such request would not have raised any implied promise on her part to pay for the same (Crane v. Baudouine, 55 N. Y. 256 ; Estate of Mrs. Shipman, supra; Matter of Smith, supra); but, on the contrary, since all the services were necessary for the defendant’s family, and the plaintiff’s assignors knew it, the presumption would be that the defendant had made such request as agent of her husband. Lindholm v. Kane, supra; Bradt v. Shull, 46 App. Div. 347 , 61 N. Y. Supp. 484 . The record is barren of any evidence tending to show that the services were rendered upon the personal credit of the defendant, or that the plaintiff’s assignors, when they rendered them, told the defendant that they would look to her for payment of the same.

Under these circumstances, no recovery against the defendant can be maintained, unless some effect can be given to the testimony adduced in plaintiff’s behalf that, after all the services had been rendered, the defendant made two payments on account, and thereafter asked for a bill, and said she would probably pay the claim in installments; subsequently the defendant wrote one of the plaintiff’s assignors that “as soon as I am able to go to New York I will call,” and that she meant by that letter that she wanted to go there for the purpose of borrowing money from a friend; thereafter, viz., in the month of November, 1902, Dr. Wadsworth, one of the plaintiff’s assignors, and

There is no evidence that the defendant was engaged in any business when the services were rendered, or that she bound her separate estate, if she had any, with the payment thereof, and therefore, in the absence of proof showing an agreement on her part to be personally liable, the recovery by the plaintiff against her was not warranted. It results from these views that the judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Judgment reversed,, and new trial ordered, with costs to appellants to abide event. All concur.