Peaks v. Mayhew

• Decision Date: 30 January 1901
• Parties: PEAKS et al. v. MAYHEW.
• Court: Maine Supreme Court

48 A. 172

94 Me. 571

PEAKS et al.

v. MAYHEW.

Supreme Judicial Court of Maine.

Jan. 30, 1901.

(Official.)

Exceptions from supreme Judicial court,

Piscataquis county.

Action by Joseph B. Peaks and another against Orrin P. Mayhew. Judgment for plaintiffs, and defendant excepts. Exception sustained.

Argued before EMERY, WHITEHOUSE, SAVAGE, FOGLER, and POWERS, JJ.

J. B. Peaks and E. C. Smith, for plaintiffs.

C. W. Hayes and W. E. Parsons, for defendant.

WHITEHOUSE, J. This was an action to recover for professional services rendered by the plaintiffs, as attorneys at law, in conducting the defense of a criminal prosecution for adultery against the defendant's wife. She was indicted and tried jointly with her alleged paramour, who employed separate counsel. There was evidence tending to prove that at the time these services were rendered the wife was living apart from her husband, and for some time prior thereto had been living apart from him, without his fault, and against his will, although he had furnished her a suitable home, and requested her to remain there. There was also evidence tending to show that at and before the time the services were rendered the plaintiffs had knowledge that the wife had separated from her husband, and it was not in controversy that they were rendered without any express promise on the part of the defendant to pay for them. The trial for adultery resulted in a disagreement of the jury, and the defendant's wife subsequently returned to her husband, and renewed cohabitation with him. At the next term of court the government entered a nolle prosequi on the indictment.

It was contended in behalf of the defendant, as a matter of law, that, if his wife was living apart from him without his fault, and against his will, she thereby forfeited her right to receive support from him; and had no authority to pledge her husband's credit for the counsel fees in question, although the plaintiffs did not know that her separation from her husband was caused by her own fault But the presiding justice instructed the Jury, inter alia, as follows: "Ordinarily, in regard to the more material things of life, a wife cannot pledge the credit of the husband when she leaves the home which he has supplied for her, and leaves at that home a suitable place where she could have lived and received the necessities of life for her comfort and support. It is not a necessity in such a case. But this rule does not apply to this particular case, where it is not sought to recover compensation for such material necessities which might or might not have been supplied at the home of her husband. But, the wife being away from the husband, if it was reasonably necessary for her to have counsel, it then would be proper for her to pledge her husband's credit, unless he supplied in some way counsel to defend her during her trial, or unless he provided means for her.

"If, in a case where the husband and wife were living apart, the husband should supply means to the wife to employ counsel and to pay counsel, then it would not be necessary for her to employ counsel with his credit, because she had means of her own with which to employ and pay counsel. * * *

"So, then, the matter of separation, whether through fault of the husband or the wife, I instruct you, for the purposes of this trial, is not a material question in the case, except so far as I shall hereafter allude to it and make an exception, because, if you find that it was necessary, in the position in which she was last September, to employ counsel,—to have counsel,—then she would have a right to pledge the credit of her husband to pay counsel, unless he had employed counsel for her, or furnished in some way or other means for her to make her defense. * * *

"The only issue, perhaps, that is presented in this case, then, as to the questions of liability, under this instruction which I have given you, is as to whether or not the plaintiffs were employed by this woman upon the credit of her husband."

The instruction that it was not a material question in the case "whether the separation was through the fault of the husband or the wife" must be deemed an erroneous statement of the law applicable to this case.

As presented by the bill of exceptions, the instruction must be considered upon the assumption that the jury might have found that the defendant had furnished a comfortable home for his wife, and supplied her with all the necessaries suitable to her situation and his own circumstances and condition in life, and that she abandoned this home and lived apart from her husband without fault on his part, against his will, and without any justifiable cause. Under such circumstances it is a well-settled and elementary principle in the law of domestic relations, requiring no citation of authorities for its support, that a wife who thus willfully deserts her husband without just cause at the same time forfeits all right to have her maintenance and support from him, and carries with her no authority to pledge his credit even for articles which might be essential to her health, comfort, and support, and therefore properly deemed necessaries for which the husband would be liable if slie had left for his fault. But, by a willful violation of duty on her own part, she relieves her husband from the observance of the marital obligation which would otherwise rest upon him. There is no rule of law or principle of justice which would raise a presumption of agency in favor of a wife to enforce an obligation on the part of her husband, which, for her own fault has ceased to exist. In case of the wife's desertion of her husband, the presumption changes to the side of the husband, and the burden is upon the plaintiff who seeks to recover for necessaries furnished the wife, with knowledge of the separation, to show that they either lived apart by mutual consent or that the separation was occasioned by the fault or misconduct of the husband. Schouler, Dom. Rel. p. 93; 1 Chit. Cent. 248; 15 Am. & Eng. Enc. Law (2d Ed.) p. 888, and authorities cited; 1 Bish. Mar. & Div. § 570; Benjamin v. Dockham, 132 Mass. 181; Brown v. Mudgett, 40 Vt. 68; Thome v. Kathan, 51 Vt. 520; Walker v. Simpson, 7 Watts & S. 83, 42 Am. Dec. 216. The rule is as well sustained by reason and justice as by authority, for it is manifest that the opposite doctrine would necessarily tend to break down the reasonable and salutary restraints imposed by the solemn compact of marriage, and thereby defeat, in a large degree, the great moral and social purposes which the...