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BULNER v. KRELTZHEIM et al.
NLR23V408
Present : Schneider J.
BULNER v. KRELTZHEIM et al.
43-C. R. Kandy, 28,640.
Husband and wife-Debt
contracted by wife for carrying on her separate business-Liability of
husband-Joint liability of husband and wife-Principal and agent.
A husband is liable for debts contracted by his wife for such necessaries as
are required for the household or for her legitimate maintenance. Where a wife
contracted a debt for carrying on her separate business as a dressmaker without
her husband's authority, held that the husband was not liable.
Where the husband la liable for the wife's debt, both husband and wife are not
jointly liable, as it is not possible for both principal and agent to be liable
on the same contract.
THE
facts appear from the judgment. Arulanandan, for appellant.
June 2,1922. SCHNEIDER J-
The plaintiff claimed a certain sum of money as having been lent so the first
defendant for the purpose of her business as a dressmaker which she was carrying
on. She joined the second defendant in the ration as being the husband of the
first. The second defendant pleaded Chat he was not liable, and that he had no
knowledge of the transaction whatever. He also pleaded that he had been
separated from his wife for some time. The only evidence in the case is that of
the plaintiff, who says that the first defendant was living with her husband and
had the dressmaking establishment in his house, and that she borrowed the money
for the purpose of her business, and that the defendants fell out after that.
The learned Commissioner has given judgment for the plaintiff for the sum
claimed against both defendants. Now, if the money was borrowed by the first
defendant as the wife of the second, and the second defendant is liable for that
loan, it is evident that the first defendant also cannot be liable, because the
liability of the second defendant arises upon the assumption that the first
defendant was his agent in contracting that debt. It is not possible for both
principal and agent to be liable on the same contract. It seems to me tint the
facts in this case do not warrant the assumption that the money was borrowed by
the first defendant in her capacity as the agent of her husband. There are no
facts from which the existence of an agency can be inferred. The plaintiff's own
evidence shows that the first defendant carried on the business of a dressmaker
as a business which belonged to herself. The plaintiff nowhere states that the
second defendant had any share in that
Therefore, it cannot be said that the second defendant in any manner held himself out either personally or otherwise as a person who would be liable for the business debts of the first defendant, All that the common law would allow us to assume is that a wife would be the agent of her husband for such necessaries as are required for the household or for her legitimate maintenance. I do not think that the common law would justify the inference being drawn in the circumstances of this case that the first defendant acted as the agent of the second in borrowing this sum of money. I would, therefore, set aside the judgment in so far as the second defendant is concerned, and would dismiss the action against him, but I am not disposed to grant the second defendant his costs, either in the lower Court or in this Court, for the reason that he might have made it known more publicly that he was not liable for the debts of his wife incurred for her business. The first defendant has not appealed, and, therefore, this appeal leaves untouched the decree in so far as it relates to her.
Set aside.
