Hyde v. Leisenring

• Decision Date: 24 December 1895
• Citation: 107 Mich. 490,65 N.W. 536
• Court: Michigan Supreme Court
• Parties: HYDE v. LEISENRING.

65 N.W. 536

107 Mich. 490

HYDE v. LEISENRING.

Supreme Court of Michigan

December 24, 1895

Error to circuit court, Eaton county; Clement Smith, Judge.

Action by Rufus J. Hyde against John W. Leisenring. There was a judgment for plaintiff, and defendant brings error. Reversed. Fred J Slayton (H. F. Pennington, of counsel), for appellant.

J. B Hendee and C. O. Markham (John M. Corbin, of counsel), for appellee.

GRANT J. (after stating the facts).

1. No creditor can complain of a husband, or bind him for necessaries on the ground of an implied contract, where the wife herself could not. Crittenden v. Schermerhorn, 39 Mich. 666. Persons trusting a wife, living separate and apart from her husband, upon his credit, do so at their own peril. Gill v. Read, 5 R. I. 345; Bennett v O'Fallon, 2 Mo. 57. The home, which the father and husband has furnished, is the place in which the law gives him the right to provide for his wife and children. When he has done this, and is ready and willing there to provide for them, according to his means, he has fully performed both his legal and moral obligation. When, therefore a minor child of the age of discretion voluntarily and without cause abandons his home, the father is not liable for his care or support. For the same reason, when a wife leaves her husband without justification, and takes their infant child with her, she does not carry with her the credit of her husband for necessaries furnished for either herself or her child. Corry v. Lackey (Mich.) 63 N.W. 418; Bazeley v. Forder, L. R. 3 Q. B. 559; Baldwin v. Foster, 138 Mass. 449; Weeks v. Merrow, 40 Me. 151; Angel v. McLellan, 16 Mass. 28; Gotts v. Clark, 78 Ill. 229. None of the authorities cited by the plaintiff, unless it be Gill v. Read, supra, support the opposite doctrine. Some of them hold that when a decree of divorce has been rendered dissolving the marital relation, but making no provision for the custody and support of the children, the father's duties and obligations remain the same towards his children as they are without a divorce. Gilley v. Gilley, 79 Me. 292, 9 A. 623. Bauman v. Bauman, 18 Ark. 320, goes no further than to hold that if the wife, complainant in a bill for divorce, is dissatisfied with the allowance made by the court for the support of her child, she need not accept the allowance, but may cast the burden upon him by surrendering the child to him. The court said in that case that it did not appear that the father was unwilling to take the child or was an unfit person. In Rumney v. Keyes, 7 N. H. 571, the facts were that the husband and wife had never lived together, and he had never made any provision for the support of his wife and child, in consequence of which, she being ill, and unable to support herself and child, both became a charge upon the town. The decision seems to be based upon the fact that under the laws of that state the father had a right to the custody of his children, and might obtain possession of their persons by habeas corpus, but that by suffering them to remain with their mother he constituted her his agent to contract debts for clothing and necessaries. The court stated that it had found some difficulties in considering the case on account of the brevity with which it was drawn. The opinion, however, states: "The facts, as stated, leave little doubt that the abandonment was on the part of the husband, but this is not explicitly shown. Sufficient, however, appears to compel the defendant to set up some defense to the claim." The case of Gill v. Read appears to be based upon that of Rumney v. Keyes. In this state, however, in the case of the separation of husband and wife, the mother is entitled to the custody of children under 12 years. 2 How. Ann. St. � 6294. And the court of chancery, in a divorce suit, is authorized to make such order for the care and custody of the children and their suitable maintenance during the pending of the suit as shall be deemed proper and necessary. Id. 6237. While the former statute would not probably relieve the father of the support of his infant children, it takes away from him the custody of the children, and renders these last two decisions inapplicable to this case. A doctrine directly to the contrary of those decisions is held in Hancock v. Merrick, 10 Cush. 41; Husband v. Husband, 67 Ind. 583; Baldwin v. Foster, 138 Mass. 449. In this state, where the decree of divorce in favor of the wife gave her custody of the child, and made no provision for her support, it was held that the father was not liable to a stranger for the support of his child. ...