THE NEW DECISION ON MILLINERS'.BILLS.
THE decision of the Court of Appeal in the case of " Debenham v. Mellor " is so contrary to popular belief as to the state of the law upon the subject, and will so greatly alarm all trades- men, except butchers and greengrocers, that it deserves more than a passing notice. Mrs. Mellor, the wife of a man in a respectable position (manager of a railway hotel at Bradford), ordered some articles of dress of Messrs. Debenham and Free-
body upon credit, which were sent in to her and her husband's residence in the usual course. There was no contention that the dresses were extravagant, or unsuited to Mrs. Mellor's station, or overcharged, or objectionable. in any way whatever. Indeed, Lord Justice Bramwell seems to have thought that the very vague word " necessaries " might have been fairly applied to them, and no question as to their price was so much as raised. Nevertheless, when the bill was sent in, the husband refused to pay for them, alleging, quite truly and conscientiously, as it would appear, that he had strictly forbidden his wife to buy anything upon his credit, that she had disobeyed his commands, and that consequently he should not pay for the
dresses. He adhered to this decision, and Messrs. Debenham sued him for the money. The Court, however, decided that the husband was not liable, and Messrs. Debenham, whose business, with that of every other silk mercer, is attacked by the de- cision at the root, carried their plaint up to the Court of Appeal. There, however, three Judges—Lord Justice Bram- well, Lord Justice Baggallay, and Lord Justice Thesiger- unanimously agreed, in two elaborately reasoned judgments, that the Court below were right, and that if a husband pro- hibited his wife from pledging his credit, that prohibition ended his liability, even though it was privately given, and remained entirely unknown to the tradesmen concerned. They fancy they are supplying goods to a wife, but are really supplying them to a fence sole, who also happens to be exonerated by law from process for debt. For, be it observed, the exemption of the husband does not create a liability in the wife, the tradesman having, in fact, no legal debtor. Some little doubt was signi- fied as to whether this decision would hold good as against use and wont, that is, when the wife was sued by tradesmen whose bills the husband had previously habitually paid ; but in the case of a "first order" to a tradesman the Judges were absolute, and their decision finally settles the law.
It is not too much to say that it threatens every tradesmen in the country who does not deal in necessary eatables, about which also some little hesitation was expressed. All mercers, hosiers, bootmakers, furniture-dealers, jewellers, booksellers, and indeed all tradesmen who do not " send for orders," have been accustomed to think that up to a well understood though indefinite amount, varying with the station of the parties, the order of a wife living with her husband for goods bound that husband. They were aware, in some dim way, that they must not rely on such an order if absurdly extrava- gant, or if for articles out of the usual course, but must ask definite authority ; and that a husband could, by public adver- tisement, put an end to his liability, but that he could do it by private arrangement with his wife without informing them or anybody else never, we venture to say, so much as entered their heads. Indeed, Messrs. Debenham and Freebody, who are, we suppose, the extensive mercers of Wigmore Street, must have executed thousands of such orders, and certainly,
had they even suspected the state of the law, would never have taken the case into Court, and so have warned every married swindler in London that he had a new opportunity open to him. He has only to give his wife a written order not to pledge his credit, and obtain an acknowledgment, and she may order what she pleases ; for she as wife will not be liable, and he as husband, opposed on principle to credit dealings, will not be liable either. That is ominous news for jewellers, who are naturally the tradesmen most affected by swindlers, and we have the greatest difficulty in believing the decision commonly just. We can see its possible legality, because it is in accord with the ordinary principle that an agent cannot go beyond his written instructions ; but we cannot, in the face alike of existing opinion and existing custom, see its justice. The wife is treated every day in all manner of disputes as the husband's agent, her action in that capacity has regulated bargains for centuries, and now all tradesmen are told that the presumption does not apply to their case, if the husband has secretly adver- tised himself out of the usual law.. Lord Justice Bramwell says the tradesmen may charge ready money, there being neither custom nor convenience in favour of credit for ladies' dresses ; but suppose the dresses have to be made up, and that a fair charge till the dress is completed is next to an impossi- bility. How is a bonnet made to order to be charged for until it is complete? Of course, a tradesman can ask, as the Judge suggests, if the lady has her husband's authority to order her clothes—and she cannot lie about it, for fear of the Act about obtaining money on false pretences—but so he can ask if she has her marriage-certificate to show, and he is about as likely to put the one question as the other. His customers would regard the question as an affront. Laws, to be just, must recognise national manners as affecting contracts, as well as other cus- tomary dealings. If the wife of a shipowner ordered a new brig out of her own head, she would be asked by the shipbuilder
for her husband's permission, without any sense on either side of insult, and so she would if she were buying land, but she cannot be asked when she is ordering her gown or her little daughters' frocks. Our manners forbid so open an assertion of the pecuniary dependance of the wife, even for articles of her personal convenience. The tradesman must and will tale the risk, and the result of the decision will not be ready-money transactions, but a needless addition to prices, put on to cover the risk he now finds he has always in- curred. We cannot but think that up to a reasonable amount the husband ought to be made to take the risk, too, always re- membering that if he is really oppressed, he can publicly adver- tise that he will be oppressed no longer.
We quite admit, of course, the immense difficulty of the domestic problem, which Lord Justice Bramwell puts in the following words :—" It was said it was hard upon the trades- man, but it would be harder still upon the husband to lay upon him a burden of liability against his will, and from which he would be unable to relieve himself, except by public adver- tisement not to trust his wife." There can be no doubt that in all classes of society the wife occasionally ruins the husband by extravagance, and that among the lower classes the " tally " system, under which the wife buys in secret, promising to pay by instalments, and the husband is imprisoned for the debt, has become a gross oppression ; but to deprive the wife of any right to pledge her husband's credit, and the tradesman of any redress against a compact which he has no reason to suspect, and practically no means of discovering without losing custom, is certainly not a fair remedy for the hardship. Some reasonable risk must be incurred in all the relations of life, and there are very few men in business who could not be half-ruined by acts which their partners have every legal right to perform. Suppose Messrs. Dcbenham's junior partners, in the absence of their seniors, order the doors to be shut during business hours. Life cannot be cleared of all liabilities, and the chance that a wife may ruin her husband by foolish expenditure, which he has not the nerve publicly to prohibit, is not greater than a thousand other chances of being ruined. The Judges, of course, must interpret the law, and no layman would dispute the deci- sion of such a Bench ; but the result, particularly the retro- spective result, is most unfair. It would be more just to declare by law that the wife's order was in no case binding on the hus- band,—in which case the tradesman would either ask for authority or use his judgment, as he does when his customer is a man,— than to leave the dealer dependent on the possible understand- ing, which may exist or may not, but which he can in either case know nothing about. We do not see how the tradesmen who live by supplying luxuries or necessaries to women are to exist under such a custom, and expect an agitation for an altera- tion of the law, to which the agitation against Stores will be a trifle.
Previous page
