Nissen

This action was brought against a husband for necessaries furnished his wife, under the provisions of section 174, Civil Code. A jury being waived, the court rendered judgment in favor of the plaintiff for part of his demand. From that, and from an order refusing him a new trial, defendant Bendixsen appeals. The testimony of the plaintiff’s witnesses was all by depositions. The defendant appeared and gave evidence in open court. There is a conflict in their testimony. When this is the case, it is a settled rule of law, as declared by this court in numerous instances, that for such reason alone a judgment will not be reversed. But the further point is made that the complaint therein does not state facts sufficient to constitute a cause of action, and will not support a judgment such as the one rendered. It is claimed that although section 174 of the Civil Code gives a right 'of action, it confers no other or greater right than that which existed at common law, and that it did not intend to change, nor does it change, the rule of pleading as to averments which were necessary in such a case at common law. The complaint does not allege that the articles were sold to the husband,…