Hoey v. Hechtman

HALL, J.

This is an appeal from a judgment upon the judgment-roll. The complaint is in seven counts identical in form,, each being for goods sold and delivered. The

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second allegation in each count is that: “Defendant and Carrie C. Hechtman now are, and at all times herein mentioned have been, husband and wife.” The third allegation of the first count is as follows: "That on or about the twenty-second day of November, 1902, defendant was indebted to R. G-. Schroeder in the sum of $155.70 for goods, wares, and merchandise sold and delivered within two years last past, at the city and county of San Francisco, state of California, to said Carrie C. Hechtman, wife of said defendant, and that said goods, wares and merchandise were common necessaries of life and necessary for the support and maintenance of said Carrie C. Hechtman.” The third allegation in each of the other counts varied from the. above only in the name of the seller of the goods and the amount of the indebtedness. Defendant demurred to each count upon the ground that it did not state a cause of action. The demurrer was overruled and upon failure of defendant to answer judgment was entered against him as prayed for.

The demurrer should have been sustained. The complaint does not allege a sale to defendant, and does not allege all the facts necessary under section 174 of the Civil Code, to fix liability upon a husband for a sale to the wife.

(Simon, Jacobs & Co.

v.

Scott,

53 Cal. 76;

Nissen

v.

Bendixsen,

69 Cal. 521, [11 Pac. 29].) In

Simon, Jacobs & Co.

v.

Scott,

the allegations were of a sale to the wife of the defendant,, and were very similar in form to the allegations of the complaint in this case, being “that the said goods and merchandise were necessary for her and the family of defendant and the maintenance of the household of defendant.” The court said: “Whether the defendant is liable for the goods furnished to the wife or not, it is certain that the plaintiffs cannot recover against him their value, in the absence of an averment that they were sold and delivered to him. If she was authorized, by reason of her relation to her husband, the nature and character of the goods, and the husband’s circumstances, to purchase them, the goods were in law sold to defendant, and the averment should have been to that effect.” In the case of