Bay District Claim Service, Ltd. v. Jones

JOHNSON, P. J.

The plaintiff instituted the action as the assignee of Raphael Weill & Company, a corporation operating the department store known as The White House in San Francisco. The defendants, Henry M. Jones and Anna (otherwise known as Zona C.) Jones, are husband and wife, who have been living apart under a separation agreement dated June 16, 1915. In the agreement Mr. Jones agreed to pay his wife for her maintenance and support the sum of $200 a month.

In September, 1931, Mrs. Jones bought a fur coat at The White House for $372.50 on which she paid $104, leaving unpaid at the time of suit $268.50. At about the same time certain other articles of clothing were purchased on credit for which there was owing $37.50. The goods purchased were all charged to Mrs. Jones personally.

In the year 1931, and particularly at the time of the purchases, Mr. Jones was not fully complying with the agreement to pay his wife $200 a month; and in December, 1931, Mrs. Jones instituted an action against her husband to recover the amount of $2,975 in arrears, together with accrued interest, and obtained a judgment by default for $3,460.03. On March 29, 1932, after that judgment was entered, Mr. and Mrs. Jones made a new or supplemental agreement modifying their original agreement and among other things providing for satisfaction of said judgment. This later agreement was, however, almost immediately repudiated by Mrs. Jones, and nothing was received by her under it. Her judgment also remained unpaid.

In the present action the trial court gave judgment in favor of plaintiff against the defendant Henry M. Jones for $306, the full amount of the claim; and said defendant has appealed from that judgment.

The question .presented is whether a husband is liable for necessaries furnished to his wife, when the two are living apart under a separation agreement, wherein the

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husband covenants to make stipulated payments to the wife for her support, but fails of compliance with his stipulation.

Section 175 of the Civil Code provides: “nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement”.