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GIMBEL BROTHERS v. PINTO (11/14/58)

November 14, 1958

GIMBEL BROTHERS, INC.
v.
PINTO, APPELLANT.



Appeal, No. 279, Oct. T., 1958, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1954, No. 583, in case of Gimbel Brothers, Inc. v. Robert R. Pinto et ux. Judgment affirmed.

COUNSEL

Vito F. Canuso, with him Roy Martin Boyd, for appellant.

Nathan L. Posner, with him Donald Brown, and Fox, Rothschild, O'Brien & Frankel, for appellee.

Before Rhodes, P.j., Hirt, Wright, Woodside, Ervin, and Watkins, JJ. (gunther, J., absent).

Author: Hirt

[ 188 Pa. Super. Page 73]

OPINION BY HIRT, J.

Lavinia Pinto, the wife-defendant, bought a mink coat at plaintiff's Philadelphia store; the sale price, including tax, was $3,316.50. She had a charge account with Gimbels, which however had been used as a convenience in making current family purchases, but for no unusual transaction such as this. She told plaintiff's credit man that her husband had authorized her to buy the coat and would pay for it. She

[ 188 Pa. Super. Page 74]

    was allowed to take the coat with her but her account was charged with the amount of the sale. When her husband, the defendant Robert R. Pinto learned that his wife had bought the coat, he immediately wrote plaintiff stating: "Please be advised that since I have become separated from my wife, I will not be responsible for any indebtedness unless incurred by myself." He has consistently refused to pay for the coat. After a fruitless effort to induce Lavinia Pinto to return the coat in settlement of its claim, plaintiff, about two months after the purchase, brought this action against both defendants to recover the price for which it had been sold. The jury found for the plaintiff against both defendants in the sum of $3,735 - a finding for $3,316.50 with interest added to the date of the verdict. The defendant-husband alone appealed from the judgment, entered as to him on the verdict, contending that the court erred in refusing his motion for a new trial. Judgment n.o.v. in his favor had also been refused by the lower court; this also was assigned as error.

The jury upon a charge of the trial judge which adequately submitted the question of the husband's liability for the purchase as a "necessary", found against him on that ground. A coat for a wife is a necessary, and in this case notwithstanding our first reaction, from an examination of the record we are now of the opinion that the coat here, although mink, was properly classified as a necessary by the jury under the unusual circumstances of this case.

In the light of the verdict these are the circumstances which must be taken as established in addition to the facts recited above: The defendants were on the verge of a separation. And on October 27, 1954, the day of the purchase, the husband left his wife in the marital domicile, a dwelling at 128 Powell Lane, Upper Darby, which was owned by them by entireties. The

[ 188 Pa. Super. Page 75]

    wife in her sworn answer to the complaint in this case averred that before the purchase she "had a distinct understanding with her husband, with whom she was living and at whose instance and request she purchased the merchandise, [that he] would be fully, personally and individually responsible." In an effort, however, as she said, to "try to save my home somehow" after the verdict, she lost no time in recanting testimony to the same effect, also under oath, given by her at the trial of the case. Following the verdict and on the evening of the same day on which it was returned Lavinia Pinto made affidavit to a statement in writing to the effect that she had falsely testified at the trial to "the circumstances leading up to the purchase of the mink coat." And the very next day she made a second affidavit in which she stated: "I falsely testified at previous hearings in this matter" i.e., that her husband had specifically authorized her to purchase the coat; and "that the truth of the matter is that I was not authorized to purchase same by my husband and that we did not discuss the purchase of a mink coat before the date of the purchase; that at the time of the purchase my husband and I were separated, in fact, we have been separated from on or about September 27, 1954." These affidavits were ...


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