Morel Brothers & Company Ltd v Westmorland (Earl of)
| Jurisdiction | UK Non-devolved |
| Year | 1904 |
| Court | House of Lords |
| Date | 1904 |
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 fact that husband and wife live together and that necessaries for the household are supplied on the orders of the wife is not evidence that husband and wife are jointly liable. The presumption that the wife has in such a case authority to pledge the husband's credit may be rebutted by proof that he made her a sufficient allowance, though this arrangement is not known to those who supply the necessaries.
Order XIV., r. 5, does not apply where the right of action can only be in the alternative against one or other of two defendants. In such a case judgment against one of the defendants is conclusive evidence of an election not to proceed against the other.
THE appellants brought an action against the Earl and Countess of Westmorland for the price of wines and provisions supplied, and signed judgment under Order XIV. against the Countess, who did not defend. The judgment being fruitless they proceeded against the Earl. At the trial before Phillimore J. with a jury it appeared that when these goods were supplied Lord and Lady Westmorland were living together at Apethorpe Hall, Northamptonshire, except when he was with his regiment in South Africa or elsewhere. Part of the goods were supplied before July, 1899, and part after. In that month an arrangement was made between Lord and Lady Westmorland by which he set aside 2000l. a year (out of his total income of 2500l.) for the household expenses to be paid into a separate banking account upon which he or she might draw: the Countess to have her own income of 400l. a year for her exclusive use. The plaintiffs had no notice of this arrangement. The Earl paid the 2000l. a year. The questions put by Phillimore J. to the jury and their answers 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 for the station of the defendant? — Yes. (b) Did the Earl give his wife a sufficient allowance for household expenses? — On income named, 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.
Phillimore J...
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