Alley v. Winn

• Decision Date: 09 January 1883
• Citation: 134 Mass. 77
• Parties: Alfred G. Alley v. John Winn
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 77

Alfred G. Alley v. John Winn

Supreme Court of Massachusetts

January 9, 1883

Argued October 25, 1882

Bristol. Contract for necessaries furnished to Susan B. Winn the wife of the defendant, while living apart from him, from October 14, 1881, to February 7, 1882. At the trial in the Superior Court, before Colburn, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

Exceptions sustained.

J Brown, for the defendant.

H. M. Knowlton, (A. E. Perry with him,) for the plaintiff.

Devens, J. C. Allen, Colburn & Holmes, JJ., absent.

OPINION

Devens, J.

At the trial, upon the evidence offered upon both sides, the court ruled that "the wife had no justifiable cause to leave her husband, and could not carry his credit with her on that account." To this ruling no objection was made, but, against the defendant's objection, the court also instructed the jury, that if the husband and wife were living separately and apart by mutual consent or his voluntary consent, and she had no means of support, and he had made no provision for her support, he would be liable to pay for articles furnished her which were necessaries, during such separation or living apart from each other. This is a correct statement of the law upon the facts embraced in the proposition, and to it the defendant has no just exception, if it was all that the case required.

It is to be considered whether there were other facts of importance appearing in the case which called for other or additional instructions, and whether these were called to the attention of the presiding judge by any proper request. Whether the wife left the husband originally with his consent or not, was in dispute; but it appeared that some time after such departure a proceeding had been brought by her for a separate maintenance; and that an agreement was then made between the husband and wife, that, if he would pay her the sum of $ 300, she would release her dower, whenever requested by him, in any lands he might hold, and would make no further claim on him for support or any other cause; that this money had been paid, and that she with a surety had actually executed a bond to him conditioned that she would make no such claim. It did not appear that she had thereafter offered to return to her husband, or had made any claim upon him for support.

The defendant asked the court to rule, as matter of law, that the evidence did not show that they were living separately and apart by such mutual consent, or under such circumstances as would render him liable for her support during the period of her absence. The defendant also contended that, at the legal proceeding in 1875, he had provided for her support. While the attention of the presiding judge was drawn less distinctly than it should have been to the effect of the transaction into which the husband and wife had entered, or assumed to enter, at the termination of the proceeding by the wife for a separate maintenance, yet the request, in connection with this evidence, that the jury should be instructed that they were not living apart "by such mutual consent and under such circumstances" as would render the husband liable for her support, so far brought this matter to the consideration of the court, that, if the defendant was entitled to an instruction to this effect, based on the arrangement made by the two parties, he may properly ask a new trial.

In this view, the inquiry is presented whether, if a husband and wife live apart by mutual consent, the wife receiving a sum not sufficient for her support, but agreeing that she will release dower, thereafter support herself, and make no claim upon him, she so carries his credit with her that she may render him responsible for necessaries, not having, after such arrangement, made any claim for support, or offered to return.

The ground upon which a wife is entitled to pledge the credit of her husband is usually treated as depending upon the doctrine of agency. Sometimes this right results merely from its general principles. Where a wife is at the head of a household, and, acting as its mistress, orders the usual supplies, such as are needed for its appropriate maintenance, or even the clothing of its younger members, who are taken care of by others, the ordinary reasons upon which it is held that any one who holds out another as authorized to contract for him is bound by the agreements thus...