112-NLR-NLR-V-23-BULNER-v.-KRELTZHEIM-et-al.pdf
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Present: 8chneider J.
BULNER v. KRIil/fisffKill et at.
43-r-C. B. Kandy, 28,640.
Husband and wife—Debt contracted by wife for carrying on her separatebusiness—Liability of husband-joint Viability of hatband andwife—Principal and agent.
A husband Is liable tor debts contracted by his wife to suchnecessaries as axe required to the household or to her legitimatemaintenance. Where a wife contracted a debt to carrying on herseparate business as a dressmaker without her husband’s authority,held that the husband was not liable.
Where the husband is liable to the wife’s debt, both husbandand wife are not jointly liable, as it is not possible to both principaland agent to be liable on the same contract.
facts appear from the judgment.
Artdanandan, for appellant.
June 2,1922. Schneider J.—
The plaintiff claimed a certain sum of money as having been lentto the first defendant for the purpose of her busings as a dressmakerwhich she was carrying on. She joined the second defendant in theaction as being the husband of the first. The second defendantpleaded that he was not liable, and that he had no knowledge of thetransaction whatever. He also pleaded that he had been separatedfrom his wife for some time. The only evidence in the case is thatof the plaintiff, who says that the first defendant was living with herhusband and had the dressmaking establishment in bis bouse, andthat she borrowed themoney. for the purpose of herbusiness, and thatthe defendants fell out after that. The learned Commissioner hasgiven judgment to the plaintiff for the sum claimed against bothdefendants. Now, if the money was borrowed by the first defendantas the wife of the second, and the second defendant is liable for thatloan, it is evident that the first defendant also cannot be liable,because the liability of the second defendant arises upon the assump-tion that the first defendant was his agent in contracting that debt.It iB not possible for both principal and agent to be liable on the samecontract. It seems to me that the facts in this case do not warrantthe assumption that the money was borrowed by the first defendantin her capacity as the agent of her husband. There are no factsfromwhioh the existence of an agency can be inferred. The plaintiffsown evidence shows that the first defendant carried on the businessof a dressmaker as a business which belonged to herself. The plaintiffnowhere states that- the second defendant had any share in that
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business. Therefore, it cannot be said that the second defendantin any manner held himself out either personally or otherwise as aperson who would be liable for the business debts of the first defend-ant. All that the common law would allow ns to assume is that awife would be the agent of her husband for such necessaries as arerequired for the household or for her legitimate maintenance. Ido not think that the common law would justify the inference beingdrawn in the circumstances of this case that the first defendant actedas' the agent of the seoond in borrowing this sum of money. I would,therefore, set aside the judgment in so far as the second defendantis concerned, and would dismiss the action against him, bat I am notdisposed to grant the second defendant his costs, either in the lowerCourt or in this Court, for the reason that he might have made itknown more pnblicly that he was not liable for the debts of his wifeincurred for her business. The first defendant has not appealed, and,therefore, this appeal leaves untouched the decree in so far as itrelates to her.
Set aside.
1922.
SconaBBD
J.
Buhner v. ■KrtlUheim