Morel Brothers & Company Ltd v Westmorland (Earl of)
| Jurisdiction | England & Wales |
| Date | 1903 |
| Year | 1903 |
| Court | Court of Appeal |
Husband and Wife - Authority of Wife to pledge Husband's Credit - Goods supplied on Order of Wife - Joint Liability - Presumption arising from Cohabitation - Principal and Agent - Alternative Liability - Election - Judgment signed against one of two Defendants - Order XIV., r. 5.
The facts that a husband and his wife, each having property, have been living together, and that necessaries have been supplied for the household on the orders of the wife, afford no evidence of a joint liability on the part of the husband and wife to pay for the necessaries so supplied. The presumption primâ facie arises in such a case of an actual authority impliedly given to the wife by the husband to pledge his credit for necessaries for the household, but that presumption may be rebutted by proof of an arrangement under which a substantial allowance has been made by the husband to the wife for household expenses on the understanding that she was not to pledge his credit.
Where a claim was made in an action for the price of goods against a husband or his wife alternatively, and the plaintiffs under Order XIV. obtained leave to sign, and signed judgment for the amount claimed against the wife, who had separate property:—
Held, that the signing of judgment against the wife was a conclusive election by the plaintiffs to rely on her liability, and they could not afterwards insist on the liability of the husband.
Rule 5 of Order XIV. does not apply where the right of action can only be in the alternative against one or other of two defendants.
APPLICATION for judgment or a new trial in an action tried before Phillimore J. with a jury.
The action was brought against the Earl and Countess of Westmoreland to recover the price of wines and provisions supplied by the plaintiffs between May, 1897, and September, 1901.
Judgment for the amount claimed had been signed under Order XIV. against the Countess, who did not defend the action, but that judgment remained unsatisfied.
At the trial it appeared that the goods for the price of which the action was brought had been ordered by the Countess and delivered at Apethorpe Hall, in Northamptonshire, where the defendants resided. The price of the goods so delivered by the plaintiffs prior to an arrangement entered into in July, 1899, as after mentioned, amounted to 146l. The price of the goods so delivered by the plaintiffs after that arrangement amounted to 264l.
At the time of the trial the Earl of Westmoreland was absent in South Africa. Evidence was given by Mr. Royds, a member of the firm of solicitors acting for the Earl, which was substantially to the following effect. In July, 1899, the domestic expenditure of the defendants having exceeded the amount of income available to meet it, an amount of 1500l., which included the amount then owing to plaintiffs, was due to various creditors. The net annual income of the Earl was about 2500l., and the Countess had an annual income of 400l. of her own. In July, 1899, a discussion took place between Mr. Royds, acting partly for the Earl and partly for relations desirous of assisting him, and the defendants as to money matters. The Earl said that he would not be liable for the debts which his wife had incurred; but on the advice of Mr. Royds he agreed to pay them, if he could find the money. The Earl said that he wished in future to manage the household himself, but the Countess would not agree to that. It was ultimately agreed that the Earl should set aside out of his income an allowance of 2000l. a year for household expenses, which was to be paid into a separate banking account, upon which either the Earl or the Countess might draw for such expenses only, that the Countess should provide for her dress and other personal expenses out of her own income of 400l. a year, and that the Countess was not to incur any expenses for the household beyond the amount of 2000l. so allowed. It appeared that the Earl had paid into the account the amount of 2000l. a year as agreed. The plaintiffs had no notice of the above-mentioned arrangement. Shortly after July, 1899, a sum of 1200l. was forthcoming, which was distributed by cheques drawn by Mr. Royds among the various creditors, the plaintiffs receiving 50l. on account of the amount then due to them, for which credit was given by the plaintiffs' particulars. The questions left by Phillimore J. to the jury and their answers thereto were as follows. (1.) Was the Earl liable for goods supplied prior to July, 1899? Yes. (2.) As to goods supplied since that date, (a) Were they necessaries? Yes. (b) Did the Earl give his wife a sufficient allowance for household expenses? Yes. (c) Did the Earl prohibit his wife from incurring any household expenditure except out of the agreed allowance? Yes. (d) Did the Countess in ordering from the plaintiffs act as agent for the Earl jointly with herself, or for the Earl only, or for herself only? For the Earl and herself jointly. (e) To whom did the plaintiffs give credit? To the Earl in the name of the Countess.
The learned judge gave judgment against the Earl of Westmoreland for the price of the goods supplied both before and after July, 1899. Application was made by the Earl for judgment or a new trial.
Gore-Browne, K.C., and G. A. Bonner, for the defendant, the Earl of Westmoreland. The plaintiffs' claim on the face of the writ, and as developed at the trial, is against the husband and wife jointly in respect of goods supplied on the orders of the wife. There is no evidence of any such joint liability; and the findings of the jury appear to negative its existence. It is now settled by the decisions in Jolly v. ReesF1 and Debenham v. MellonF2 that, in the case of a husband and wife living together, the question of the authority of the wife to pledge her husband's credit is one of fact, like that in any ordinary case of agency. In such a case there must, in order to render the husband liable, be actual authority given by him, either expressly or by implication, or ostensible authority by virtue of some action by him holding out the wife as his agent. Where the husband and wife have lived together and the wife has managed the household, the presumption arises that the husband authorized the wife to pledge his credit for necessaries for the household, but that presumption is at once rebutted on proof that the husband made an allowance, which was not illusory, for household expenses, and forbade his wife to pledge his credit. The presumption which arises from cohabitation is a presumption of actual authority by implication. There is no question in such a case of ostensible authority by holding out, unless the husband has done such acts, or so conducted himself, as to entitle a tradesman dealing with the wife to rely upon some appearance of authority for which the husband ought to be held responsible: see per Lord Selborne L.C. and Lord Blackburn in Debenham v. Mellon.F3 There was no evidence in this case of any conduct by the husband which could give rise to an ostensible authority in the wife. Phillimore J. appears to have thought that there was some distinction for this purpose between articles of dress supplied to the wife and provisions or other necessaries consumed or used in the household; but it is submitted that there is really no such distinction. Applying the principles laid down by the before-mentioned authorities to the claim in respect of goods supplied after the arrangement in July, 1899, it is submitted that upon the facts and the findings of the jury the Earl is entitled to judgment as regards the price of these goods on the ground that the Countess had no authority to pledge his credit either jointly with her own or otherwise.
Further, with regard to all the goods, both those supplied before the arrangement of July, 1899, and those supplied after it, the Earl is entitled to judgment on the following grounds. As already stated, the cause of action appearing in the indorsement on the writ and relied on at the trial is a joint cause of action against the Earl and the Countess. In the first place, there is no evidence whatever to support such a cause of action, and, therefore, in the absence of an amendment, which ought not at this stage to be allowed, the plaintiffs must fail. There is no evidence of any credit given by the plaintiffs to the defendants jointly. The orders were given by the Countess, and the goods were debited in her name in the plaintiffs' books. There is no evidence of any actual authority given by the Earl to the Countess to pledge their joint credit. If the plaintiffs rely on any legal presumption arising from the fact of cohabitation, that presumption is of an...
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