Meaher v. Mitcell

• Decision Date: 09 December 1914
• Citation: 92 A. 492,112 Me. 416
• Parties: MEAHER v. MITCELL.
• Court: Maine Supreme Court

92 A. 492

112 Me. 416

MEAHER

v. MITCELL.

Supreme Judicial Court of Maine.

Dec. 9, 1914.

Report from Supreme Judicial Court, Cumberland County, at Law.

Action by Dennis A. Meaher against Lewis M. Mitchell. On report from the Supreme Judicial Court of Cumberland County. Judgment directed for defendant.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Dennis A. Meaher, of Portland, in pro. per.

Frank H. Haskell, of Portland, for defendant.

CORNISH, J. The plaintiff, an attorney at law, seeks to recover in this action against the husband for professional services rendered the defendant's wife during divorce proceedings instituted by the husband. In those proceedings the libelee prevailed, and the divorce was not granted.

No express contract on the part of the defendant to pay for the services is alleged or claimed; but the plaintiff rests his case on the broad ground that the services rendered fall within the class of necessaries, for which the husband may be held liable in an independent action.

Two small items in the account annexed cover services for consultation with merchants, at about the time of separation, relating to supplies to be furnished the wife; but the evidence fails to show that these services were in any way necessary. The wife could have applied directly to these parties for credit, and no reason is given for her not doing so. There was no necessity of employing an attorney to make the request in her behalf. The wife's implied agency or authority to pledge her husband's credit, arising from the marital relation alone, might have covered the supplies furnished, but could not be stretched so as to include the apparently unnecessary services of an attorney for consultations with the parties furnishing them. The defendant is not liable for these items.

The balance of the account embraces professional services rendered and disbursements made in the divorce proceeding itself, as counsel for the wife, the libelee. Recovery for these items raises a novel question in this state, although it has been passed upon in many other jurisdictions, and the authorities are not in entire harmony. In Georgia, Iowa, Maryland, West Virginia, Texas, and perhaps some others, it has been held that an attorney may recover in an action at law for services so rendered the wife in connection with divorce proceedings, and in most of these states it is immaterial whether she be libelant or libelee. Sprayberry v. Merk, 30 Ga. 81, 76 Am. Dec. 637; Porter v. Briggs, 38 Iowa, 166, 18 Am. Rep. 27; Preston v. Johnsoq, 65 Iowa, 285, 21 N. W. 606; Clyde v. Peavy, 74 Iowa, 47, 36 N. W. 883; McCurley v. Stockbridge, 62 Md. 422, 50 Am. Rep. 229; Peck v. Marling, 22 W. Va. 708; Dodd v. Hein, 26 Tex. Civ. App. 164, 62 S. W. 811.

But the overwhelming weight of authority does not sustain this view. In Massachusetts, New Hampshire, Vermont, Connecticut, Illinois, Alabama, Arkansas, Kentucky, Michigan, Missouri, Nebraska, New Jersey, Wisconsin, Washington, and perhaps in others, the rule of nonliability is asserted and maintained without qualification. Coffin v. Dunham, 8 Cush. (Mass.) 404, 54 Am. Dec. 769; Morrison v. Holt, 42 N. H. 478, 80 Am. Dec. 120; Ray v. Adden, 50 N. H. 82, 9 Am. Rep. 175; Wing v. Hurlburt, 15 Vt. 607, 40 Am. Dec. 695; Shelton v. Pendleton, 18 Conn. 417; Cooke v. Newell, 40 Conn. 596; Dow v. Eyster, 79 Ill. 254; Pearson v. Darrington, 32 Ala. 227; Kincheloe v. Merriman, 54 Ark. 557, 16 S. W. 578, 26 Am. St. Rep. 60; Williams v. Monroe, 18 B. Mon. (Ky.) 514; Wolcott v. Patterson, 100 Mich. 227, 58 N. W. 1006, 24 L. R. A. 629, 43 Am. St. Rep. 456; Hamilton v. Salisbury, 133 Mo. App. 718, 114 S. W. 563; Yeiser v. Lowe, 50 Neb. 310, 69 N. W. 847; Westcott v. Hinckley, 56 N. J. 343, 29 Atl. 154; Clarke v. Burke, 65 Wis. 359, 27 N. W. 22, 56 Am. Rep. 631; Zent v. Sullivan, 47 Wash. 315, 91 Pac. 1088, 13 L. R. A. (N. S.) 244, 15 Ann. Cas. 19, and exhaustive note.

Some courts have based their decisions upon the broad principle that legal services in divorce proceedings cannot be classed as necessaries, for which the husband can be held liable in an independent action, while others, admitting the necessity of the employment, rely upon the power in the divorce court conferred by statute to compel the husband, pending the libel and as ancillary thereto, to provide an allowance sufficient to enable the wife to prosecute or defend. We adopt, without hesitation, the rule of nonliability in an independent action, not on the ground that such services cannot be classed as necessaries, but because of the...