Funk v. Mannister

Decided January 11, 1871

Court of Appeals of Kentucky · decided 1871-01-11

Husband and Wife — Action for Necessaries Furnished at Wife’s Instance— Answer. The denial that the alleged necessaries were furnished at the wife’s instance, were or on her credit, is sufficient to bar the action for 'subjecting her estate, even if she authorized the signature of her name to the note.. Same — Non est Factum. The answer imports a plea of non est factum, the averment that her name was signed by the husband in her absence impliedly negatives his authority.

Decided 1871-01-11

¶1Opinion op ti-ie Court by

Judge Robertson:

¶2Tbe denial that the alleged necessaries were furnished at the wife’s instance or on her credit, is sufficient to bar the action for subjecting her estate even if she authorized the signature of her name to the note, for, as hitherto adjudged, there was no statutory consideraton for the note.

¶3Moreover the answer imports a plea of non est factum; for, connected with other facts, the averment that her name was signed by the husband in her absence impliedly negatives his authority.

¶4It seems to this court therefore that the circuit court erred in sustaining a demurrer to the answer.

¶5Wherefore the judgment is reversed and the cause remanded for further proceedings.