Fisher v. Drew

• Decision Date: 03 January 1924
• Citation: 247 Mass. 178,141 N.E. 875
• Parties: FISHER v. DREW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 178

141 N.E. 875

FISHER

v.DREW.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 3, 1924.

Exceptions from Superior Court, Worcester County; Nelson P. Brown, Judge.

Action of contract by Daniel C. Fisher against Edward M. Drew for recovery for board and room. The court found for plaintiff, and defendant brings exceptions. Exceptions overruled.John F. Hurley, of Boston, for plaintiff.

Clarence E. Tupper, of Worcester, for defendant.

RUGG, C. J.

This case involves the contractual right of a father to recover from the husband of his adult daughter payment for her board and laundry, where the father was ignorant of the marriage at the time the service were rendered and where there was no express contract for compensation. No question of amount is presented, the only controversy being whether any liability existed.

The case was referred to an auditor, who stated the facts but made no general finding on the defendant's liability. Holmes v. Hunt, 122 Mass. 505, 23 Am. Rep. 381.

Summarily stated the facts are these: Daniel C. Fisher had a family consisting of his wife and a daughter, Mary A. Fisher, of full age. The daughter had always been supported by him. The father had an office, also occupied by the daughter, who was a public stenographer and who did her father's work of that character, paying no rent and receiving no compensation for her services. The work so performed was sufficient to offset the use of the office. On September 4, 1916, the defendant, Edward M. Drew, married the daughter; but this fact was not known to the father and Mrs. Drew with her husband's consent continued to live in her father's home, to occupy his office and to do his stenographic work, as she did before her marriage. This situation continued until June 20, 1918, when the fact of the marriage was made known to the mother, and the daughter went to live with her husband. The father knew of the marriage about two months prior to the latter date. The husband was able and willing to support his wife during the time in question, but he contributed nothing for that purpose. The husband has never acknowledged any indebtedness. There was no communication of any kind between him and the father during the entire period.

[1] After the coming in of the report both parties filed motions for judgment in accordance therewith. It is evident, however, that the case was not heard under Rule 30 of the Superior Court (1923) Rules (see Wheeler v. Tarullo, 237 Mass. 306, 129 N. E. 610), but that there was a trial before the judge with the auditor's report as the only evidence, jury claims having been waived. The case is considered on that basis. Sherry v. Littlefield, 232 Mass. 220, 122 N. E. 300. Even if there had been a general finding by the auditor in favor of one of the parties, the judge might have come to a different conclusion if warranted by the stated facts. Livingston v. Hammond, 162 Mass. 375, 38 N. E. 968;Fisher v. Doe, 204 Mass. 34, 41, 90 N. E. 592;Weisberg v. Hunt, 239 Mass. 190, 131 N. E. 471;King v. Freedman, 239 Mass. 560, 564, 132 N. E. 367.

The defendant's motion that judgment be entered in his favor was denied. The plaintiff's motion that judgment be entered in his favor was allowed and judgment entered accordingly. The defendant's exceptions to the disposal of each of these motions bring the case here.

[2] These motions are not framed as requests for rulings of law. That part of Rule 44 of the Superior Court (1923) Rules, which requires that the ‘question whether the court should order a verdict must be raised by a motion,’ has no application to hearings before a judge sitting without a jury. A ‘verdict’ can be rendered only by a jury. McKinley v. Warren, 218 Mass. 310, and cases collected at 312, 105 N. E. 990. The use of the word ‘verdict’ confines the scope of that part of Rule 44 to jury trials. Each motion in the case at bar amounts to no more than a request for the entry of a judgment favorable to the party presenting it, either as the result of findings of fact or of rulings of law. A judge sitting without a jury in an action at law can only be required to pass upon pertinent requests for rulings of law seasonably presented and to decide the case. Davis v. Boston Elevated Railway, 235 Mass. 482, 494, 126 N. E. 841. The defendant's exceptions, therefore, mean that if as matter of law judgment ought to have been entered in his favor or could not rightly have been entered for the plaintiff, then the exceptions must be sustained; but if, either as matter of law or as a result of findings of fact on the auditor's report, judgment rightly might have been entered for the plaintiff, then the exceptions must be overruled.

[3][4][5][6] There is a presumption that board furnished to a daughter by her father is gratuitous and ordinarily no implied promise arises to pay therefor. Mulhern v. McDavitt, 16 Gray, 404;Livingston v. Hammond, 162 Mass. 375, 38 N. E. 968;Lyons v. Jackson, 232 Mass. 275, 278, 122 N. E. 304. There is also an implication of the law that, where the husband refuses or neglects to support his wife, he is liable for such support to one who furnishes it whether the latter is aware of the circumstances which give rise to the liability, or not. Cartwright v. Bate, 1 Allen, 514, 79 Am. Dec. 759. The moment the marriage relation comes into existence, a husband, except under special circumstances is liable for the necessary expenses of his wife's support where he has neglected to defray the same or to make proper provision therefor. Mayhew v. Thayer, 8 Gray, 172;Dolan v. Brooks, 168 Mass. 350, 47 N. E. 408;Prescott v. Webster, 175 Mass. 316, 56 N. E. 577. His liability is based on the obligation to fulfill ‘what law and duty require him to do, and which he neglects or refuses to do for himself.’ Cunningham v. Reardon, 98 Mass. 538, 539,96 Am. Dec. 670;Raynes v. Bennett, 114 Mass. 424;Vaughan v. Mansfield, 229 Mass. 352, 118 N. E. 652. See McCreery v. Martin, 84 N. J. Law, 626, 87 Atl. 433,47 L. R. A. (N. S.) 279, Ann. Cas. 1915A, 4. The authority has been said to create a ‘compulsory agency.’ Benjamin v. Dockham, 134 Mass. 418. The husband is bound ‘even against his will’ and his ‘consent is conclusively implied.’ Alley v. Winn, 134 Mass. 77, 79,45 Am. Rep. 297. Generally the liability exists only in cases of necessity. The obligation is one imposed by law and exists even if a husband has no full contractual...