Pritchard v. Bigger

• Decision Date: 04 April 1939
• Docket Number: No. 40.,40.
• Citation: 288 Mich. 447,285 N.W. 17
• Parties: PRITCHARD v. BIGGER.
• Court: Michigan Supreme Court

288 Mich. 447

285 N.W. 17

PRITCHARD

v.BIGGER.

No. 40.

Supreme Court of Michigan.

April 4, 1939.

Action by Helen Palmer Pritchard against Andrew Bigger, for reasonable value of necessaries and services furnished to defendant's wife during her last illness. From a judgment on a directed verdict for plaintiff in an insufficent amount, plaintiff appeals.

Affirmed.

BUSHNELL, CHANDLER, and McALLISTER, JJ., dissenting.

Appeal from Circuit Court, Bay County; James L. McCormick, judge.

Argued before the Entire Bench.

Samuel G. Houghton, of Bay City, for appellant.

Leibrand & Leibrand, of Bay City, for appellee.

BUTZEL, Chief Justice.

This is a hard case but it should not be permitted to make bad law. I am constrained to hold that defendant's motion for directed verdict was properly granted by the court below.

I agree that the sole question to be determined is whether Mrs. Bigger pledged defendant's credit to plaintiff in order to secure for herself the necessaries of life. Since the spouses were not residing together at the time, the presumption that the wife was authorized to pledge her husband's credit cannot obtain. People v. Kellogg, 205 Mich. 482, 171 N.W. 410. The rule is also laid down in Williston, Contracts, Rev.Ed., sec. 270, and supported by many decisions cited in the foot note, that apart from statutory law, if it exists (and it does not exist in Michigan) ‘If credit is in fact given to the wife, no one else will be liable even though the circumstances were such that she might have pledged her husband's credit.’

It is obvious that plaintiff did not rely on any express or implied promise of defendant to pay for the goods and services furnished his wife, since both plaintiff and her mother believed defendant was dead. It is true that plaintiff consulted an attorney for her mother who subsequently signed a bill for divorce from defendant, but we do not know what was in Mrs. Bigger's mind at the time. This suit was brought after her death. It is possible, and there are statements in the record which tend to confirm this, that since there was no positive evidence of defendant's death except his disappearance many years before, it was thought advisable to have a judicial decree through divorce proceedings which awarded and vested in Mrs. Bigger the title to the entire property. Plaintiff expressly testified that ‘At the time I came here to talk about divorce, I believed Mr. Bigger dead and thought so for many years.’

Even when her mother died, plaintiff testified that she did not notify defendant because she believed him dead.

In the foregoing opinion it is stated, however, that plaintiff furnished the goods and services ‘in consideration of the conveyance of the Bay City home.’ For that reason, it is further argued that after the entire credit had been extended and the wife had died, and it then for the first time appears that the property did not belong exclusively to the wife, it must follow that the credit was extended to the husband. The doctrine that a husband may be liable for necessaries furnished his wife where his credit has been pledged has been long and frequently applied; it is significant that no case has been found which recognizes any theory of ‘extension of credit’ specifically on the basis of a husband's property, particularly where the claimant believed it was owned by another and that the husband was dead.

Even assuming that credit might be extended ‘in consideration of’ the husband's property, I find nothing in the record to justify the conclusion that plaintiff in any way relied on defendant's interest in the property, when supplying necessaries to her mother. The quitclaim deed, which attempted to convey the property, rather than revealing such reliance, conclusively shows that defendant's interest in the home was not considered. The deed ran from ‘Emma Bigger, surviving wife of Andrew Smith Bigger,’ to plaintiff, and recited that the ‘grantee above named hereby agrees to care for said grantor during the remainder of her lifetime both in sickness and in health and at her, grantor's death, to give her as good a burial as the conditions will warrant; that this shall include the payment of doctors and nurse bills, if any, together with any other expense required for the proper care, comfort and support of said Emma Bigger.’

Manifestly, both mother and daughter believed that Bigger was dead and that the property belonged exclusively to the mother. In that event, no question of fact remains to be tried by a jury. The fact of reliance is to be determined from the conditions and circumstancess existing at the time the credit was extended. Where no reliance on defendant's credit at that time is shown, there is no room for the jury to speculate on whether plaintiff would have continued to look to the property for satisfaction has she known that defendant was alive and the tenancy by entireties still subsisted. Such hypothetical considerations are wholly foreign to the single issue of whether she relied on defendant's credit while in ignorance of the fact that defendant was still alive and such tenancy by the entireties still subsisted. Viewed most favorably to plaintiff, her own testimony establishes no more than that she knew the property was jointly held by husband and wife; that she long believed the husband was dead; and that she rendered services and furnished necessaries to the wife in the mistaken belief that the wife's quitclaim deed to the property vested title in herself. I cannot agree that this establishes a prima facie case against defendant. The extension of credit under such circumstances must be held, not without reluctance, to have been at the peril of the creditor. Cf. Clark v. Cox, 32 Mich. 204;H. Leonard & Sons v. Stowe, 166 Mich. 681, 132 N.W. 454;Taylor v. Shelton, 30 Conn. 122;Connerat v. Goldsmith, 6 Ga. 14.

The holding of the court that defendant was liable for the funeral expenses of Mrs. Bigger need not be discussed since defendant took no cross-appeal.

Judgment is affirmed, with costs to defendant.

WIEST, SHARPE, POTTER, and NORTH, JJ., concurred with BUTZEL, C. J.

BUSHNELL, Justice (dissenting).

Defendant Andrew Bigger married Emma Bigger, the mother of plaintiff Helen Pritchard, some 53 years prior to the commencement of this action. Bigger, a sailor on the Great Lakes, would leave his home in Bay City early in the spring and generally return sometime in December, unless employed at the close of navigation as a watchman on board a ship when laid up in the winter. In 1927 he left his home in Bay City and was not seen again by plaintiff, who is his stepdaughter, until after her mother's death in 1936. Mrs. Bigger, for some time, was in very poor health and her only means of livelihood was selling flowers on the streets at night. During this time she lived in her home, which she owned jointly with her...