McQuay v. McQuay

Decision Date01 February 1930
Docket Number6538.
Citation284 P. 532,86 Mont. 535
PartiesMcQUAY et al. v. McQUAY.
CourtMontana Supreme Court

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Action by Ray McQuay and another against James McQuay. A motion of the defendant to dissolve an attachment levied upon certain funds by plaintiffs was denied, and defendant appeals from the order of denial. Affirmed.

Angstman J., dissenting.

R. F Gaines and A. G. Shone, both of Butte, for appellant.

T. J Davis and John K. Claxton, both of Butte, for respondents.


On January 29, 1929, plaintiffs filed their complaint to recover from defendant the sum of $839, with interest, alleged to be the reasonable value of medical and surgical attention and hospital care provided defendant's wife during her last sickness and for funeral expenses. At the time of filing the complaint, plaintiffs caused a writ of attachment to issue and be levied upon certain funds belonging to defendant. On February 11, 1929, defendant filed a motion to discharge the attachment on the ground that plaintiffs' cause of action was not based upon a contract, express or implied, for the direct payment of money, as provided for by section 9256, Revised Codes of 1921. On February 23, and before the hearing on defendant's motion to discharge the writ of attachment, plaintiffs filed an amended complaint containing seven causes of action. The first cause of action, which is identical with the others, except the seventh cause of action, and save as to the character of the services rendered defendant's wife and the amounts claimed to be due, alleges, in substance, that defendant and Bridget McQuay intermarried on July 25, 1897, and continued as husband and wife to the date of her death; that during the month of December, 1927, Bridget McQuay suffered a broken limb, and, as a result thereof, medical and surgical treatment and hospital care were required for her; that St. James Hospital, a corporation, furnished hospital care and attention, including a room in the hospital, of the reasonable value of $228, which defendant failed and refused to pay, and that, prior to the commencement of the action, St. James Hospital assigned and transferred the claim to plaintiffs.

The motion to dissolve the attachment was denied, and defendant appeals from the order. The only question presented for determination is whether a writ of attachment may issue in an action of this character.

Under the provisions of section 9256, supra, a writ of attachment may issue only in an action upon a contract, express or implied, for the direct payment of money, where payment is not secured by a mortgage, lien, or pledge, or, if originally secured, such security has become valueless without any act of the plaintiff or the person to whom the security was given.

Section 5784, Id., imposes upon the husband the duty of supporting the wife out of his own property or by his labor, while section 5800, Id., provides that, if he neglects to make adequate provision for the support of his wife, any other person may in good faith supply her with articles necessary for her support and recover the reasonable value thereof from the husband. Where a husband is abandoned by his wife, he is not liable for her support unless she was justified by his misconduct; nor is he liable when she is living separate from him by agreement, unless such support is provided for in the agreement. Section 5801, Id.

It is not questioned, and could not well be, that the services rendered by the respective parties named in the amended complaint are such as bring them within the classification of articles necessary for the support of defendant's wife within the meaning of the statute.

Both at common law and by statute the husband is primarily liable for necessaries suitable to his circumstances and condition in life, furnished the wife. Where the husband fails or refuses to provide such necessaries, she may, while living with him or while living separate from him due to his misconduct, bind him by her contracts with third persons for such necessaries. Section 5801, supra; 30 C.J. 589.

The basis of the liability of the husband for necessaries furnished his wife is his failure or refusal to perform his legal and moral duty, arising from the marital relation, and under such circumstances the law creates an implied agency on the part of the wife, which authorizes her to bind him ( Grimstad v. Johnson, 61 Mont. 18, 201 P. 314, 25 A. L. R. 351), even against his will. His consent is implied by reason of this relation, and the wife can bind him to pay for such things as are necessary for her support. Wanamaker v. Ulizio, 102 N. J. Law, 166, 130 A. 555; Carr v. Anderson, 154 Minn. 162, 191 N.W. 407, 26 A. L. R. 557; Werner v. Werner, 169 A.D. 9, 154 N.Y.S. 570; French v. Burlingame, 155 Mo.App. 548, 134 S.W. 1100; Moore v. Rose, 130 Mo.App. 668, 108 S.W. 1105; Crosby v. Harris & Co. (Tex. Civ. App.) 234 S.W. 127; Pool v. Everton, 50 N.C. 241; Allen v. Rieder, 41 Pa. Super. Ct. 534; Pierpont v. Wilson, 49 Conn. 450; Phillips v. Sanchez, 35 Fla. 187, 17 So. 363; McFerren v. Goldsmith-Stern Co., 137 Md. 573, 113 A. 107, 18 A. L. R. 1125; Dolan v. Brooks, 168 Mass. 350, 47 N.E. 408; Raynes v. Bennett, 114 Mass. 424. Many other cases illustrating the extent and limits of the rule will be found collected in 30 C.J. 589, and 13 R. C. L. 1198 et seq.

The wife having authority, granted her by our statutes, to pledge defendant's credit for necessaries, her contracts for such necessaries are his contracts, and the obligations arising thereunder in furnishing the same are his obligations. Benjamin v. Dockham, 134 Mass. 418; Werner v. Werner, supra.

It is contended that it is a general rule that, whenever defendant's liability to plaintiff arises purely from statute, it is not regarded as a demand on which an attachment will issue under our statute. Butler v. Peters, 62 Mont. 381, 205 P. 247, 26 A. L. R. 560, is cited in support of this contention. The decision in that case correctly states the law, but in our opinion the rule announced is not applicable here. We are of the opinion that the debts created by the wife, as the husband's agent, for necessaries, which it is alleged he failed, neglected, and refused to furnish, are not statutory, but are analogous to those in the ordinary case of principal and agent. In other words, under such circumstances the law constitutes the wife the husband's agent, with authority to bind his credit for such necessaries. The agency is statutory, but the obligations arising thereunder are contractual. This being true, there is a contract for the direct payment of money, which is unconditional as to time, amount, and the person by whom and to whom it is to be paid, within the rule announced by this court in Square Butte State Bank v. Ballard, 64 Mont. 554, 210 P. 889, and Gilna v. Barker, 78 Mont. 343, 254 P. 169.

It follows that the first six causes of action as set forth in the amended complaint are based upon contracts "express or implied, for the direct payment of money," within the meaning of section 9256, supra.

The seventh cause of action alleges that Sam R. White attended the remains of Bridget McQuay after her death and prepared the same for burial, and in connection therewith furnished a casket and other funeral services necessary and essential to the proper interment of the body, that the claim has been assigned to plaintiffs, and that defendant has failed, neglected, and refused to pay the same; recovery is sought for the reasonable value of the services rendered. The motion to discharge the writ of attachment was directed against the writ in its entirety, and, since we have determined that the writ was properly issued upon the other causes of action set forth in the amended complaint, whether attachment lies upon claims of this character is not necessary for decision. Wilson v. Barbour, 21 Mont. 177, 53 P. 315.

We express no opinion as to the sufficiency of the complaint; our inquiry goes no further "than to ascertain whether the action is upon a contract, express or implied, for the direct payment of money; whether it states facts sufficient to constitute a cause of action against the defendants; and, if it does not, whether it can be amended so as to state a cause of action. * * * A mere defective statement of a cause of action is not a sufficient ground for the discharge of an attachment." Union Bank & Trust Co. v. Himmelbauer, 56 Mont. 82, 181 P. 332, 335.

For the foregoing reasons the order is affirmed.

CALLAWAY, C.J., MATTHEWS, J., and POMEROY, District Judge (sitting in place of GALEN, J., absent on account of illness), concur.

ANGSTMAN J. (dissenting).

The original complaint in this action contained an allegation that the husband and wife were not living together as such at the time she sustained injuries resulting in the necessity of receiving medical attention. That complaint apparently was attempted to be drawn under section 5801, Revised Codes 1921. It failed to allege the reason why they were not living together, and it did not allege that they were living separate and apart by virtue of an agreement stipulating for her support. The amended complaint, however, is treated by the parties and by the majority opinion as one seeking recovery under section 5800. This section provides: "If the husband neglect to make adequate provision for the support of his wife, except in the cases mentioned in the next section, any other person may in good faith supply her with articles necessary for her support and recover the reasonable value thereof from her husband."

The precise question presented is: Is the cause of action one "upon a contract, express or implied, for the direct payment of money,"...

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