Gimbel Bros. v. Adams

190 N.W. 357, 178 Wis. 590, 1922 Wisc. LEXIS 58

• Court: Wisconsin Supreme Court
• Decided: November 8, 1922
• Status: Published

Opinion

Eschweiler, J.

'At the time of the purchase by Mrs. Adams in September, 1916, she and the defendant were not then living together, she having taken up her abode and earning her own living in Chicago, having left Milwaukee, their former home. This the court,finds was without the consent and not by the fault of defendant. There is support in the evidence for the findings of the court so far as the purchases in question here were for Mrs. Adams’ own use, and his conclusion in that regard that the defendant ought not to be held chargeable for the same cannot be disturbed. Plaintiff failed to meet the burden placed upon it, where such a relationship as was here presented appears, in order to establish a legal liability on defendant’s part. Morgenroth v. Spencer, 124 Wis. 564, 566, 102 N. W. 1086; Sturtevant v. Starin, 19 Wis. 268.

For so much of the bill representing items. aggregating $40.90 which were purchases made by Mrs. Adams for their eight-year-old daughter the situation is quite different. Though the child in the summer of 1916 took quite a supply of clothing with her when she left her mother to go to her father, yet the articles purchased by Mrs. Adams of the plaintiff were nevertheless kept and retained by defendant. For a period of about two years following September, 1916, he was not required to spend any money at all for clothing for this child. However unauthorized in the first instance the purchase by Mrs. Adams of the articles for the child from the plaintiff may have been, the defendant, with notice of such purchase and of such alleged agency by his wife, kept and retained possession of the articles so purchased by her, and he, not she, benefitéd by such purchase. He accepted and retained the articles purchased for the child, whose custody and control he also had. Whether such articles were such as could be classed as necessaries is entirely immaterial. He must be held to have ratified the purchase of such articles, and to that extent ought not and will not be heard to repudiate the transaction. Shuman v. Steinel, 129 Wis. 422, 425, 109 N. W. 74; Francis H. Leggett & Co. v. West Salem C. Co. 155 Wis. 462, 468, 144 N. W. 969; Gnat v. Westchester F. Ins. Co. 167 Wis. 274, 277, 167 N. W. 250; 3 Page, Contracts (2d ed.) §§ 1764, 1765.

By the Courk — Judgment reversed, with directions to enter judgment in plaintiff’s favor for $40.90, together with interest and costs.