Ramji Dass and Co. v McDonald (C.A. No. 13/35.) [1935] EACA 143 (1 January 1935)

## APPELLATE CIVIL.

## Before WEBB, J.

RAMJI DASS & CO., Appellants (Original Plaintiffs)

McDONALD, Respondent (Original Defendant).

C. A. No. $13/35$ .

Husband and Wife-Contract for necessaries-Presumption of authority to pledge husband's credit—Presumption of fact— Wife having separate income.

Held (23-5-35).—That the presumption that a married woman has authority to pledge her husband's credit for necessaries is one of fact, which may be rebutted by the circumstances of the case.

Figgis, $K. C.$ , for appellants.

Three matters are to be considered in deciding whether a married woman contracts for herself or as agent of her husband: $\longrightarrow$

(1) The nature of the agreement—all circumstances must be taken into account.

(2) Did the woman purport to contract on her own behalf?

(3) If she purported to act as agent, were the circumstances such that the Court must infer that she had express or implied authority to pledge her husband's credit?

Referred inter alia to Bentley v. Griffin (128 E. R. 727), Reid v. Teakle (138 E. R. 1346), Freestone v. Butcher (173 E. R. 992), Paquin $\dot{v}$ . Beauclerk (1906 A. C. 148) Halsbury 16 art. 688.

Keatinge for the respondent. The question whether a married woman is to be deemed to have contracted otherwise than as agent is one of fact. Referred to Debenham v. Mellon $(6 \text{ A. C.})$ 24), Morel v. Westmoreland (1903 1 K. B. 64), Gray v. Cathcart, (38 T. L. R. 562), Travers v. Sen (33 T. L. R. 202).

The fact that a wife has an income does not negative her power to pledge her husband's credit, Seymour v. Kingscote (38) T. L. R. 586), Collett v. Nash (39 T. L. R. 291). Meaning of the expression "living together", Crocker v. Napper (16 T. L. R. 295); Davidson v. Wood (46 E. R. 185).

Figgis replied.

JUDGMENT.—The appellants sued the respondent, who is a married woman, for the sum of Sh. 467/50 being the price of goods sold and delivered; at the time when the goods were ordered and supplied the respondent was living with her children in Nairobi and her husband was in Tanganyika, where he was

employed by a Mining Syndicate as a prospector. It has not been very strenuously contested that the goods were not necessaries, and in my opinion the learned Resident Magistrate was right in holding that they were. He held, however, that the respondent must be taken to have contracted as agent for her husband and consequently that she was not personally liable. From that decision the present appeal is brought.

The evidence was that the respondent first dealt with the appellant for cash, and when she asked if she could open an account on a monthly basis the head of the appellant firm asked her where she was working, to which she replied: "at Kettles-Roy and Wilson", a fact of which he was already aware. $\quad\text{The}\quad$ account was opened in the name of "Mrs. McDonald, c/o Kettles-Roy and Wilson"; written orders from the respondent were signed "A. Macdonald" (her husband being Angus Macdonald), though her own first name is Ninon, but there is no evidence that the appellants had any reason to suppose that A. Macdonald was not her own name; they did not ask if she was a married woman and made no inquiries about her husband. There was also evidence that the respondent wrote promising settlement of the account. The respondent said that when she bought the goods she was contracting as agent for her husband, but she did not suggest that she ever said anything to this effect to the appellants: she said that her husband sent her what money he could, but that it amounted to practically nothing.

The law, I think, is reasonably clear, though the proper inferences to be drawn from the facts in any case are often a Section 1 of the Married Women's matter of some difficulty. Property Act, 1893, applied to this Colony by the Order in Council of 7th March, 1911, makes a married woman liable in respect of her separate estate upon any contract entered into by her otherwise than as agent; in any case it is a question of fact whether she contracted as agent or not, subject, however, to this observation: "Where a husband and wife are living together"-and in the circumstances of this case, I am of opinion that the respondent and her husband should be considered as living together-"the wife is presumed to have the husband's authority to pledge his credit for necessaries suitable to their style of living" (Halsbury 16. 420). But the presumption from cohabitation is one of fact and not of law, from which a jury may infer that the husband really did give such authority (Debenham v. Mellon, 6 A. C. 24) and that presumption may be displaced by various circumstances, one of which is if the facts show that the wife, even though having her busband's authority to pledge his credit, pledges her own to the exclusion of his. (Seymour v. Kingscote, 38 T. L. R. 586). Where the presumption is displaced the law, as I understand it, is the same in the case of a married woman as in the case of any other person who contracts in fact as agent for an undisclosed principal, but without making it clear that he contracts only as agent: in such circumstances the agent is personally liable, though the other party has an alternative right of action against the undisclosed principal, when he becomes aware of his existence.

In the present case, as in the case of Gray v. Cathcart (38) T. L. R. 562), the respondent was a new customer, and therefore there is nothing in the nature of a previous course of dealing to strengthen the presumption from cohabitation. I attach little importance to the fact that the account was opened in the name of "Mrs. Macdonald", because, as was pointed out by LORD ROBERTSON in Paquin v. Beauclerk (1906 A. C. 148), this name was "equally consistent with her being a widow or a separated woman, and was therefore insignificant on the question of agency". Of less importance still, to my mind, is the fact that the goods were delivered at the office of Messrs. Kettles-Roy and Wilson; it was, I think, in accordance with the usual practice here, where tradesmen do not deliver to the residences of their customers. But when I consider the evidence of the circumstances in which this account was opened. I find myself unable to agree with the inference drawn by the learned Resident Magistrate, who seems to have been of opinion that the presumption that a contract by a wife for necessaries is made by her as agent for the husband is one of law, only to be displaced "If the wife has given an undertaking of personal liability or if there are special circumstances such as that the husband has sent her adequate funds for her maintenance and that she has earned ample money in other ways." When the question of opening a credit account was mooted the respondent was asked where she was working, a question that could have no possible relevance unless she was to be regarded as the person to be held liable; she did not say anything about herself to suggest agency, and her reply seems to me to be consistent only with the inference that she was giving the appellants her own personal liability, and she must have known that they would so understand her, as, in my judgment, they were justified in doing. It was not necessary that she should give an express undertaking of personal liability. I cannot find evidence of any act done by the appellants upon the faith of any appearance of intention by the respondent to contract as agent for her husband.

For the foregoing reasons, I reverse the decision of the Resident Magistrate and enter judgment for the appellants for the amount claimed with costs here and below.