Sharpe Furniture, Inc. v. Buckstaff

299 N.W.2d 219, 99 Wis. 2d 114, 19 A.L.R. 4th 421, 1980 Wisc. LEXIS 2816

• Court: Wisconsin Supreme Court
• Decided: November 25, 1980
• Docket: 79-277
• Status: Published

Opinions

BEILFUSS, C. J.

This is a review of a decision of the court of appeals which affirmed the judgment of the circuit court for Winnebago county. The judgment was entered against the defendants John D. Buekstaff, Jr., and his wife, Karen Buekstaff, requiring payment of sums due on the purchase of goods from the plaintiff, Sharpe Furniture, Inc., a Wisconsin corporation engaged in the business of retail furniture sales.

This controversy centers around the purchase of a sofa from Sharpe Furniture, Inc. (Sharpe). The purchase was made by Karen Buekstaff on August 15, 1973. On that date, Mrs. Buekstaff signed in her own name a special order for a “Henredon 6800 Sofa.” Under the terms of the order she was to pay $621.50 within 60 days after the item was received from the factory. Interest at a rate of 1.5 percent per month was charged on the unpaid balance after that 60-day period. No representations were made to Sharpe at the time of the purchase that Mrs. Buckstaff was acting on behalf of her husband in purchasing the furniture. Indeed, John Buckstaff had previously written to the local credit bureau service to advise that office that he would not be responsible for any credit extended to his wife.

The Henredon sofa was received from the factory and delivered to the residence of the defendants on February 8, 1974. This piece of furniture has been a part of the Buckstaff home ever since its delivery. Despite this fact, neither John Buckstaff nor his wife have tendered payment for the sofa.

On November 20, 1975, Sharpe commenced this action against both Buckstaffs. The parties agreed to allow the trial court to decide the dispute on the basis of the undisputed facts as they appeared in the trial memorandum submitted by counsel. In addition to the facts already stated above, the informal stipulation of the parties reveals that John Buckstaff, Jr., is the president of Buck-staff Company of Oshkosh, Wisconsin. Mrs. Buckstaff is a housewife. Mr. Buckstaff earns a substantial income and the Buckstaff family is one of social and economic prominence in the Oshkosh area. It was further set forth that Mr. Buckstaff has always provided his wife with the necessaries of life and has never failed or refused to provide his wife with items which could be considered necessaries.

On the basis of these facts, the trial court found that Karen Buckstaff was liable on her contract and that John Buckstaff was also liable for the amount due on the sofa under the common law doctrine of necessaries. Judgment was entered accordingly. The court of appeals affirmed. John Buckstaff now seeks review of the decision of the court of appeals. Karen Buckstaff has not sought appellate relief from the entry of the judgment against her.

There are two issues which we must consider in reviewing the decision of the court of appeals:

1. Whether, under the common law doctrine of necessaries and in the absence of any contractual obligation on his part, a husband may be held liable for sums due as payment for necessary items purchased on credit by his wife.

2. Whether, in an action for recovery of the value of necessaries supplied on credit to a wife, it is essential for the plaintiff-creditor to prove either that the husband has failed, refused or neglected to provide the items which have been supplied by the plaintiff-creditor or that the items supplied were reasonably needed by the wife or the family.

Before proceeding to a discussion of the merits of this case, we examine the substance of the doctrine of necessaries.

The Wisconsin Supreme Court restated the common law rule of necessaries early on in the history of the jurisprudence of this state. In 1871, in the case of Warner and Ryan v. Heiden, 28 Wis. 517, 519 (1871), the court wrote:

“The husband is under legal obligations to support his wife, and nothing but wrongful conduct on her part can free him from such obligation. If he fails to provide her with suitable and proper necessaries, any third person who does provide her therewith, may maintain an action against him for the same. 1 Bishop on Mar. and Div., sec. 553. The same learned author, in the next section (sec. 554), thus defines what are necessaries which the husband is bound to furnish to his wife: ‘And, in general, we may say, that necessaries are such articles of food, or apparel, or medicine, or such medical attendance and nursing, or such provided means of locomotion, or provided habitation and furniture, or such provision for her protection in society, and the like, as the husband, considering his ability and standing, ought to furnish to his wife for her sustenance, and the preservation of her health and comfort.’ ”¹

This doctrine traditionally required the creditor to show that he supplied to the wife an item that was, in fact, a necessary and that the defendant had previously failed or refused to provide his wife with this item. See, e.g., Eder v. Grifka, 149 Wis. 606, 610, 136 N.W. 154 (1912). See also Brown, The Duty of the Husband to Support the Wife, 18 Va. L. Rev. 823, 824-35 (1932). When such a showing was made, the creditor was entitled to recovery as against the husband despite the fact that the husband had not contractually bound himself by his own act or by the act of an agent. The doctrine of necessaries is not imposed by the law of agency.² This duty is placed upon a husband: by virtue of the legal relationship of marriage.³ It arises as an obligation placed on him as a matter of public policy.

The appellant challenges the continued vitality of this common law rule. Mr. Buckstaff charges that the necessaries doctrine conflicts with contemporary trends toward equality of the sexes and a sex neutral society. He further argues that the doctrine is an outdated and inefficient means of compelling support. It is argued that various social welfare agencies and governmental institutions have replaced the doctrine of necessaries as a mechanism for the maintenance of the members of a household.

It is true that the necessaries rule has been justified in the past on the basis of a social view of the married woman as a person without legal capacity.⁴ However, the nature of the woman’s obligations under the necessary rule in relation to the obligation of her husband is not at issue here. That question has been treated in our decision in Estate of Stromsted, 99 Wis.2d 136, 299 N.W. 2d 226 (1980), wherein we concluded the husband was primarily liable for necessities and the wife secondarily liable. The question presented in this case involves a consideration of the nature of the husband’s obligation. We must decide whether such a liability imposed upon the husband furthers a proper purpose in contemporary society.

We are of the opinion that the doctrine of necessaries serves a legitimate and proper purpose in our system of common law. The heart of this common law rule is a concern for the support and the sustenance of the family and the individual members thereof. The sustenance of the family unit is accorded a high order of importance in the scheme of Wisconsin law. It has been codified as a part of our statutes, see e.g., sec. 767.08, Stats., and it has been recognized as a part of our case law. See Zach-man v. Zachman, 9 Wis.2d 335, 338, 101 N.W.2d 55 (1960). The necessaries ruie encourages the extension of credit to those who in an individual capacity may not have the ability to make these basic purchases. In this manner it facilitates the support of the family unit and its function is in harmony with the purposes behind the support laws of this state. The rule retains a viable role in modern society.

We view the nature of the husband’s liability as a contractual duty implied in law, i.e., a quasi-contractual obligation. In Seegers v. Sprague, 70 Wis.2d 997, 1004, 236 N.W.2d 227 (1975), the nature of the quasi-contract liability was discussed:

“[T]his court [has] recognized that subcontractors may have a basis for recovery in the quasi-contract action of unjust enrichment. In Don Ganser & Associates, Inc. v. MHI, Inc. (1966), 31 Wis.2d 212, 216, 217, 142 N.W.2d 781, the elements of such action were listed as: “ ‘. . . (1) a benefit conferred upon the defendant by the plaintiff, (2) appreciation by the defendant of the fact of such benefit, and (3) acceptance and retention by the defendant of the benefit, under circumstances such that it would be inequitable to retain the benefit without payment of the value thereof.’ ”

We conclude that when an item or service is obtained for the benefit of the family which is necessary and no payment for that item or service has been made, the elements of an action for an implied-in-law contract exist and the husband is primarily liable.

In light of the proper function of the necessaries rule in relation to the support of the family, in the absence of an express contract to the contrary, we hold that a husband incurs the primary obligation, implied as a matter of law, to assume liability for the necessaries which have been procured for the sustenance of his family.

Mr. Buckstaff’s second argument is that, as a matter of law, he is not liable for the necessaries purchased by his wife because Sharpe did not plead or prove that he as a husband failed, refused or neglected to provide a sofa for his wife. It is also argued that liability cannot be found in the face of the parties’ stipulation which states that Mr. Buckstaff has always provided his wife with the necessaries of life and has never failed or refused to provide her with items which would constitute necessaries.

There are three leading cases in Wisconsin concerning the nature of a creditor’s action under the law of necessaries. The most recent of these cases was decided in 1924.

The law of necessaries was first recognized in the case of Warner and Ryan v. Heiden, 28 Wis. 517 (1871) .⁵ In that case the court ruled that a husband could be held liable for attorney’s fees incurred by his wife in the course of defending against a criminal charge. Id. at 521. Such legal fees were viewed as necessaries for which the husband was responsible.

In the case of Eder v. Grifka, 149 Wis. 606, 136 N.W. 154 (1912), it was held that, besides demonstrating that necessaries were furnished by the creditor to the defendant’s spouse, a plaintiff-creditor must also plead and prove that the defendant wilfully refused to provide the necessaries for his wife. The court wrote:

“A husband is not ipsa facto liable for all necessaries that may be furnished his wife. It is only under circumstances and conditions showing a necessity that they be furnished her by others, such as his misconduct compelling her to leave him and their home, Ms wilful refusal to provide for her, or his deserting her, that the husband is liable for them.” Id. at 610. (Emphasis added.)

In the absence of these special circumstances, the rule of Eder allowed no recovery for the creditor. The merchant sold to the wife at his own risk.

The merchant’s burden of proof was modified by the decision in Simpson Garment Co. v. Schultz, 182 Wis. 506, 196 N.W. 783 (1924). The Simpson Garment Company decision involved a defendant whose wife purchased a coat, a dress and a slip for her daughter. The daughter was about to graduate from high school and lacked the proper attire for the commencement exercises. The wife pledged the defendant’s credit in order to purchase the items and when her husband refused to pay, a lawsuit was commenced. The defendant was found liable for the cost of the garments. In discussing the plaintiff’s prima facie burden, the court said:

“When a merchant sues a husband for necessaries sold to his wife or some member of his family, it is incumbent upon him to show, among other things, (1) that the articles purchased were such as are suitable for the wife or member of the family in view of the family’s social position in the community in which they live and in view of the defendant’s financial ability to pay for them; and (2) that the articles sold were reasonably needed by the wife or member of the family to whom they were sold at the time of the sale.” Id. at 509-10.

The Simpson Garment Company rule required only that the creditor show that the item was “reasonably needed” by the wife or family, and not that the husband wilfully refused to provide his wife with the necessary item as suggested by Eder v. Grifka, supra.

In applying the rule of the Simpson Garment Company decision to the case at bar, the creditor Sharpe must prevail over Mr. Buckstaff’s two-pronged attack on the judgment. The latter’s arguments are directed at the second element of the necessaries doctrine, i.e., reasonable need of the family. Buckstaff’s first argument, that the court’s judgment of liability is invalid in the absence of a finding of refusal or neglect by a husband, must be rejected. Under Simpson Garment Company, the refusal or neglect of the husband is not an element essential to recovery by the creditor. Mr. Buckstaff’s second contention is that the sofa should not be considered a necessary in view of the stipulation that he as a husband provided his wife with all necessaries. Whether or not, as a general matter, a man provides his wife with necessaries is irrelevant to a determination of whether a particular item is reasonably needed under the Simpson Garment Company rule. 182 Wis. at 510. This stipulation, which is phrased in terms of the conclusion which it seeks to establish, is not probative of whether the sofa in issue was reasonably needed.

We have reviewed the stipulation of the parties in this matter and we are satisfied that ample evidence supported the trial court’s conclusion that the Henredon sofa was a legally necessary item. The Buckstaffs are a prominent family and their socio-economic standing justifies a finding that the sofa at issue here was a suitable and proper item for their household. With reference to the element of reasonable need, we note that the sofa has been in use in the Buckstaff home since its delivery. Such continued use gives rise to an inference of reasonable need. This inference is not rebutted by the stipulation stating that Mr. Buckstaff provided his wife with “all necessaries.”

Several spousal agency theories have been advanced as a ground for liability by both the repondent and by the Wisconsin Merchants Federation as amicus curiae. Having found that Mr. Buckstaff is liable on the independent ground provided by the necessaries rule, we need not reach these questions.

By the Court. — The decision of the court of appeals is affirmed.

1 A more extensive discussion of Wisconsin law will be presented below. See text accompanying fn. 5.

2 See, e.g., Ott v. Hentall, 70 N.H. 231, 47 A. 80 (1899).

3 Paulsen, Support Bights a/nd Duties Between Husband and Wife, 9 Vanderbilt L. Rev. 709, 713 (1956).

4 See generally Pollack & Maitland, History of English Law (2d ed. 1898), sec. 403-05. See also Crozier, Marital Support, 15 Boston U.L. Eev. 29 (1935).

5 The rule of the case was quoted above and will not be repeated here. See text accompanying fn. 2.