Crittenden v. Schermerhorn

• Decision Date: 21 November 1878
• Citation: 39 Mich. 661
• Court: Michigan Supreme Court
• Parties: Allen Crittenden, administrator of Frederick Basom v. Sarah C. Schermerhorn

39 Mich. 661

Allen Crittenden, administrator of Frederick Basom v. Sarah C. Schermerhorn

Supreme Court of Michigan

November 21, 1878

Submitted October 23, 1878; October 24, 1878

Error to Washtenaw.

Appeal from the disallowance by commissioners in probate of the claim of Sarah C. Schermerhorn against the estate of Frederick Basom, for services in taking care of her mother Mrs. Basom. The claimant recovered judgment and the administrator of the estate brought error.

Judgment reversed with costs and a new trial granted.

Joslin & Whitman for plaintiff in error. The payment of alimony after separation of husband and wife discharges the husband from liability for necessaries furnished her after the order for alimony, Shouler's Dom. Rel., 95, n. 5; 2 Bish. Mar. & Div. (4th ed.), § 401; Bennett v. O'Fallon, 2 Mo. 69; Brisco v. Brisco, 2 Hag. Con., 199; Fischli v. Fischli, 1 Blackf. 360; Hare v Gibson, 2 Cincinnati Bulletin, 298; Johnston v. Allen, 39 How. Pr., 506; Dowe v. Smith, 11 Allen 108; Lord v. Thompson, 41 N. Y. Superior Ct., 115; an attorney's right to sue a husband for legal services to his wife in a proceeding against her for divorce (Porter v. Briggs, 38 Ia. 166) cannot be maintained pending the divorce proceeding, because such a claim is incident to the wife's right to temporary alimony, Glenn v. Hill, 50 Ga. 94; a claim for necessaries against a husband whose wife has separated from him, cannot be allowed except on such a showing of the husband's misconduct as would entitle the wife to a divorce, 1 Pars. Cont. (5th ed.), 353; 1 Bish. Mar. & Div., § 569; Tyler's Infancy & Coverture, 355; Blowers v. Sturtevant, 4 Den. 46; Reed v. Moore, 5 C. &. P., 200; Rea v. Durkee, 25 Ill. 503; Harttmann v. Tegart, 12 Kan. 177; Breinig v. Meitzler, 28 Penn. St., 150; Billing v. Pilcher, 7 B. Mon., 458.

Norris & Uhl for defendant in error. A husband is liable for necessaries supplied to his wife when living apart from him because of his misconduct, or by mutual agreement, if his allowance to her is inadequate, Lockwood v. Thomas, 12 Johns. 248; Evans v. Fisher, 10 Ill. 569; Ross v. Ross, 69 Ill. 569; Bevier v. Galloway, 71 Ill. 517; 2 Bright's Husb. and Wife, 19; Story on Contracts, § 97; Hodgkinson v. Fletcher, 4 Campb. 70; the facts which support divorce a mensa et thoro justify a wife in leaving her husband with a credit for necessaries, Hancock v. Merrick, 10 Cush. 41; the husband's liability for necessaries is not determined by his requesting his wife to return, 2 Bright's Husb. and Wife, 11.

OPINION

Campbell, C. J.

Defendant in error, Mrs. Schermerhorn, presented a claim against her father's estate for services in taking care of her mother. Mrs. Basom, the mother, left her husband's home in March, 1868, and in April, 1868, went to housekeeping, her daughter Mrs. Schermerhorn going with her and continuing with her until her death in November, 1871. Frederick Basom, the husband, died in the spring of 1873. At the time of the separation he owned a farm in the township of York, Washtenaw county.

The evidence tends to show tat Mrs. Basom was justified in leaving her home, and there is some testimony of serious causes of grievance. Immediately after leaving her husband, on the 10th of March, 1868, she filed a bill to obtain a divorce, which, although the record is not explicit, seems to have been based on a claim of cruelty. The parties were both over 80 years old. On the 7th of April, 1868, an order for alimony was made, based on affidavits of Mrs. Schermerhorn and Dr. Watson averring that complainant was and had been for ten years sick and needing constant nursing, watching and care, subject to sinking turns in which she was helpless for days at a time, and not in condition to be left alone.

This alimony was all paid up from time to time, though not with absolute promptness.

The account of Mrs. Schermerhorn is for her services in her mother's behalf, rendered, as she testifies, at her mother's request, with her mother's assurance of payment. She testifies she never presented an account to her father, nor to any one before she filed it with the commissioners on his estate. There is testimony tending to show the services were such as would come within the legal definition of necessaries. And there was also testimony which would authorize a jury to find there was ground of recovery, if there had been no alimony granted in the divorce suit.

The divorce suit was brought seasonably to an issue by replication on the 29th of April, 1868. An allowance was made beyond alimony for the expense of testimony. Time was extended till November 25, 1868, for taking testimony, but it does not appear that complainant took any, and the case was never brought to a hearing. No application was ever made for further alimony.

In the absence of any express promise, the power of a wife separated from her husband without her fault rests on an implied authority to bind him for necessaries, when he has made no sufficient provision for her support. If he makes sufficient provision, or if he makes provision to an amount she assents to receive without coercion, he is not bound to make good her contracts for necessaries. This is not questioned. Hodgkinson v. Fletcher, 4 Camp. 70; Reeve v. Marquis of Conyngham, 2 Car. & K. 444; Holder v. Cope, 2 Car. & K. 437; Mizen v. Pick, 3 M. & W., 411; Emmett v. Norton, 8 Car. & P. 506; Dixon v. Hurrell, 8 Car. & P. 717; Turner v. Winter, 1 Selw. N. P. 295; Ozard v. Darnford, id.

The principal question presented here is how far the husband is liable when alimony is fixed by a competent court in a suit for divorce brought by the wife. No question can properly arise here upon a failure to pay what has been decreed, because there has been no substantial default, and no services rendered or contracted for by reason of the lack of means caused by default.

In Manby v. Scott, 2 Sid 109 (reported in English in 2 Smith's Leading Cases, 408), it was held that a wife separated from her husband by his fault was bound in all cases to apply for alimony to the proper court, and that her husband was not liable for necessaries. The more recent authorities recognizing the want of power in the...