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Kelner v. Lee

Decided: January 31, 1949.

SIDNEY KELNER, INDIVIDUALLY AND TRADING AS ESSKAY CREDIT HOUSE, PLAINTIFF-RESPONDENT,
v.
HARRY LEE, DEFENDANT-APPELLANT



On appeal from District Court of the Essex County Judicial District.

McGeehan, Donges and Colie. The opinion of the court was delivered by Donges, J.A.D.

Donges

Plaintiff recovered a judgment against defendant in the trial court for $73.39 -- the balance of the price of a coat purchased by defendant's wife. The wife was not a party to the suit. The case was tried without a jury, and without a stenographer.

It was alleged, on plaintiff's behalf, that "the said defendant was the husband of Marilyn Lee, who purchased said coat as agent and wife of the said defendant, which purchase consisted of a necessity for which the said defendant is responsible" (paragraph 2 of the State of Demand).

In his specification of defenses, defendant stated that at the time of the alleged sale he and his wife were living in a state of "open and permanent separation", that the sale was made on the sole credit of the wife, that the merchandise was not a necessity, and that there was no agency on the part of the wife to bind him. And he denied all knowledge of the sale.

The testimony at the trial was apparently very scant. Despite the clear warning to plaintiff (contained in the specification of defenses) that he should be adequately prepared to meet the questions of (1) separation of the defendant and his wife, (2) non-necessary nature of the merchandise, and (3) sale on the sole credit of the wife, the plaintiff produced no witness but himself. He put his account in evidence showing the amount due,

and testified to the sale and delivery of the coat to the wife on December 27, 1946. On cross-examination he admitted that he had not dealt with defendant and that at the time of the sale he did not know whether defendant and his wife were living together or not.

Defendant testified that he married his wife on November 2, 1946; that they lived at the home of her parents until December 7, 1946, on which date, at the insistence of the wife, and without fault on his part, the separation occurred; that after the separation he paid $25.00 per week to his wife (until the following March); and that he never had any dealings whatsoever with plaintiff.

Recalled to the stand after defendant had testified, plaintiff stated that in the month of January, 1947 he met defendant at the home of the latter's wife. Defendant, recalled, testified that he had never met plaintiff, and that he (defendant) had not been at his wife's home after the separation on December 7, 1946.

Proof of the separation of defendant and his wife, at the time of the sale in question, stands unchallenged unless plaintiff's statement that he met defendant at the wife's home sometime in January, 1947 can be said to be a challenge. At most, the testimony of plaintiff and of defendant are in balance as to the alleged meeting in January, 1947. Even so, however, it leaves defendant's testimony of separation from his wife at the time of the sale (December 27, 1946) uncontradicted. Likewise defendant's testimony that after the separation he supported his wife by the payment of $25.00 per week is uncontradicted.

In our opinion, the fact of separation at the time of sale was established. In such circumstances "the presumption is against the authority of the wife to bind the husband by her contract. Under such circumstances the general rule is that the husband is not liable." Vusler v. Cox , 53 N.J. Law 516, 518. In the cited case the court noted two exceptions to the general rule, "the first of which is where husband and wife separate and live in a state of separation by mutual consent, without any ...


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