McKee

The suit was brought by the plaintiff as assignee of the Los Angeles Furniture Company upon the al leged contract set out in the complaint, of date November 20, 1903; which is that on the day named, at the city of Los Angeles, “the said Los Angeles Furniture Company sold and delivered to the said defendants, and the said defendants had and received from the said Los Angeles Furniture Company, certain goods, wares and merchandise, for which the said defendants then and there agreed to pay the sum of $752.20”; which they have ever since refused to pay, etc. The answer denies the allegations of the complaint, and it is further pleaded, in separate defenses, in effect, among other things: That for many years the defendants have been living separate and apart by agreement; that the defendant appellant has never neglected to make adequate provision for the support of his wife; and that the debt sued upon is now secured by a mortgage, executed by Mrs. Cunningham since the beginning of the suit, upon the property alleged to have been sold to the defendants, and some other property, as her separate property, which was accepted and recorded by the plaintiff. The court finds the contract of…

I concur in the judgment, though with some hesitation. The complaint alleges a sale by the plaintiff’s assignor “to the defendants,” and the finding and judgment is in accordance with this allegation. There is no evidence tending to support this allegation or finding. But the evidence of the daughters of the defendants tends to prove that the defendant appellant authorized them and their mother, or one of them, to purchase the furniture on his account; and though their testimony is not altogether satisfactory, yet it would perhaps have justified the court in finding that the furniture was purchased by the appellant defendant. Were there such a finding, the case would come within the application of the decision in Dobbs v. Purington, 136 Cal. 70 , [ 68 Pac. 323 ]; but in the absence of such a finding, it is difficult to bring the case within that ruling. It is clear, however, that the joint sale to the defendants found by the court was also several; and the court finds that the appellant defendant “authorized the purchase of [the goods] and the delivery thereof” to Mrs. Cunningham, which would seem, in effect, to find that the purchase was on account of Cunningham. In support of…