Wolf v. Friedman, 69-156

Citation253 N.E.2d 761,20 Ohio St.2d 49
Decision Date26 November 1969
Docket NumberNo. 69-156,69-156
Parties, 49 O.O.2d 306 WOLF, Appellant, v. FRIEDMAN, Appellee.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

1. Section 1335.05, Revised Code, precludes an action against a husband by an attorney to recover on an express promise by the husband to pay for legal services that his wife employed the attorney to render for her, where neither that promise nor any memorandum or note thereof was in writing and where it is not alleged and proved that the leading object of the husband in making that promise was to subserve some pecuniary or business purpose of his own, although it may be alleged and proved that those services were necessary for and beneficial to not only the wife but also the husband. (Birchell v. Neaster, 36 Ohio St. 331, approved and followed. Crawford v. Edison, 45 Ohio St. 239, 13 N.E. 80, distinguished.)

2. Legal services rendered to a wife, even in a matter adverse to her husband's interests, may represent 'necessaries for her support' within the meaning of Section 3103.03, Revised Code. (Blum v. Blum, 9 Ohio St.2d 92, 223 N.E.2d 819, approved and followed.)

3. A wife is not required to file a divorcee or alimony action against her husband in order to compel him to provide her with those legal services that he is obligated to supply under his statutory duty to provide her with 'necessaries for her support.' (Sections 3103.03 and 3105.14, Revised Code, construed.)

4. Where a petition filed by an attorney alleges (1) That the attorney was employed by defendant's wife to and did render legal services for her in (a) the defense of a criminal charge instituted against her upon the affidavit of the defendant, (b) her complaint that the defendant was performing illegal acts upon her body and that she required protection against his wrongful conduct, (c) her complaint that the defendant refused to support her adequately unless she would return to his home and again submit to illegal acts upon her body, and (d) the opposing of an affidavit executed by the defendant alleging that she was insane; (2) That those services had a reasonable value of a certain amount; and (3) That those services were necessary for her protection and were required for the protection of her rights, and where that petition does not contain any allegations from which it might be inferred that a divorce or alimony action involving the defendant or his wife was then or had been pending, such petition states a cause of action. (Section 1335.05, Revised Code, construed and applied.)

Plaintiff, an attorney, instituted this action against defendant to recover $1,222.40 for legal services rendered to and expenses advanced for defendant's wife.

The Common Pleas Court sustained a demurrer to plaintiff's amended petition and, when plaintiff declined to plead further, rendered a judgment of dismissal against plaintiff.

That judgment was affirmed by the Court of Appeals.

The cause is now before this court on appeal from the judgment of the Court of Appeals pursuant to allowance of a motion to certify the record.

Weinberger, Grad & Wolf and Herbert B. Weiss, Cincinnati, for appellant.

Nichols, Speidel & Nichols and Hugh C. Nichols, Batavia, for appellee.

TAFT, Chief Justice.

In the second cause of action of the amended petition, plaintiff alleges that, in order to induce plaintiff to expend further time and effort in the representation of defendant's wife, defendant expressly promised plaintiff that defendant would be personally responsible for the payment of legal services rendered by plaintiff to defendant's wife, and that those services were necessary and beneficial not only to defendant's wife but also to defendant.

The second cause of action contains no allegations as to the reasonable value of any of the services, for the rendering of which recovery is sought, except such allegations as are incorporated therein from the first cause of action. It appears from allegations so incorporated that plaintiff had been previously employed by defendant's wife to render those legal services and that some portion thereof had been rendered before the time of defendant's promise, which is alleged and relied upon as a basis for recovery in the second cause of action.

Thus, the second cause of action alleges an express promise by defendant to plaintiff that defendant would pay for legal services which defendant's wife had previously employed plaintiff to render for her, a portion of which had theretofore been rendered for her.

Section 1335.05, Revised Code, provides:

'No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default, or miscarriage of another person * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized.'

It is not contended that the alleged promise sued upon in the second cause of action, or any memorandum or note thereof, was in writing.

It is apparent that plaintiff intended, as his brief in this court indicates, that the allegations of his second cause of action would enable him to avoid Section 1335.05, Revised Code, with the help of our decision in Crawford v. Edison (1887), 45 Ohio St. 239, 13 N.E. 80. See also Grant v. Kinney (1927), 117 Ohio St. 362, 159 N.E. 346.

It is difficult to distinguish the Crawford decision from our prior decision in Birchell v. Neaster (1881), 36 Ohio St. 331; and what is said in the opinion in the Crawford case (45 Ohio St. page 248, 13 N.E. 80) does not help us in doing so.

However, as paragraph one of the syllabus in the Crawford case indicates, that case would not help plaintiff to avoid the provisions of Section 1335.05, unless plaintiff's amended petition alleged, in effect, that 'the leading object of' defendant was 'not to answer for' his wife's obligation 'but to subserve some pecuniary or business purpose of his own.' There are no allegations in the second cause of action that can reasonably support such a conclusion. Hence, it necessarily follows that, by reason of the foregoing statutory provisions, that cause of action is demurrable. It is not enough that plaintiff alleges that the services, which defendant's wife had employed plaintiff to render for her and for which defendant orally promised to pay, were necessary and beneficial not only to his wife but also to defendant. Birchell v. Neaster, supra (36 Ohio St. 331).

We conclude, therefore, that Section 1335.05, Revised Code, precludes an action against a husband by an attorney to recover on an express promise by the husband to pay for legal services that his wife employed the attorney to render for her, where neither that promise nor any memorandum or note thereof was in writing and where it is not alleged and proved that the leading object of the husband in making that promise was to subserve some pecuniary or business purpose of his own, although it may be alleged and proved that those services were necessary for and beneficial to not only the wife but also the husband.

Thus, the demurrer to the second cause of action was properly sustained.

In the first cause of action of plaintiff's amended petition, it is alleged that plaintiff was employed by defendant's wife to represent her in the following matters:

(a) The defense of a criminal charge instituted against defendant's wife upon his affidavit;

(b) the complaint of defendant's wife that defendant was performing illegal acts upon her body and that she required protection against his wrongful conduct;

(c) the complaint of the defendant's wife that defendant refused to support her adequately unless she would return to the home of defendant and again submit to illegal acts upon her body, and

(d) the opposing of an affidavit executed by defendant alleging that defendant's wife was insane.

As to that cause of action, it is alleged further that plaintiff did render legal services in those matters to defendant's wife, that those services were necessary for her protection and required for the protection of her rights, and that defendant has repeatedly refused plaintiff's demand for payment of the reasonable value of those services.

This cause of action is based upon Section 3103.03, Revised Code, which reads:

'The husband must support himself, his wife, and his minor children out of his property. * * * If he neglects to support his wife, any other person, in good faith, may supply her with necessaries for her support, and recover the reasonable value thereof from the husband unless she abandons him without cause.'

These statutory provisions are declaratory of the common law. See Howard v. Trustees of Whetstone Tp. (1841), 10 Ohio 365.

There is nothing in the instant case to indicate that defendant's wife abandoned him without cause. Actually, the allegations of the first cause of action disclose good cause for defendant's not living with him. Howard v. Trustees of Whetstone Tp., supra.

It has frequently been held that legal services rendered to a wife may represent necessaries for which a husband may be liable, either at common law or under statutes which codify the common law with respect to the husband's liability for necessaries supplied to his wife. Morris v. Palmer (1859), 39 N.H. 123; Conant v. Burnham (1882) 133 Mass. 503, 43 Am.Rep. 532; Carr v. Anderson (1923), 154 Minn. 162, 191 N.W. 407, 26 A.L.R. 557; Elder v. Rosenwasser (1924), 238 N.Y. 427, 144 N.E. 669; Read v. Read (1949), 119 Colo. 278, 202 P.2d 953; Citizens & Southern Nat. Bank v. Orkin (1967), 223 Ga. 385, 156 S.E.2d 86; Moran v. Montz (1914), 175 Mo.App. 360, 162 S.W. 323; Hamilton v. Salisbury (1908), 133 Mo.App. 718, 114 S.W. 563; Thigpen v. Maddox & Giffin (1937), 56 Ga.App. 464, 192 S.E. 925; Stone v. Conkle (1939), 31 Cal.App.2d 348, 88 P.2d 197. See Munson v. Washband (1863), 31 Conn. 303, 83...

To continue reading

Request your trial
27 cases
  • United States v. Rogers, 84-CR-337.
    • United States
    • U.S. District Court — District of Colorado
    • 22 Febrero 1985
    ...See, e.g., In Re Ricky H., 2 Cal.3d 513, 86 Cal.Rptr. 76, 80, 468 P.2d 204, 208 (1970) and cases cited therein; Wolf v. Friedman, 20 Ohio St.2d 49, 253 N.E.2d 761 (1969) and cases cited therein. Moreover, among those items considered necessities of life, only the right to counsel is accorde......
  • Cleveland Cent. Catholic High Sch. v. Mills
    • United States
    • Ohio Court of Appeals
    • 6 Diciembre 2018
    ...at 105, 484 N.E.2d 1365, quoting 41 Ohio Jurisprudence 2d, Parent and Child, Section 30, at 341 (1960); see also Wolf v. Friedman , 20 Ohio St.2d 49, 55, 253 N.E.2d 761 (1969) (" ‘The term "necessaries" is incapable of exact definition; its meaning is variable, depending upon the circumstan......
  • Rand v. Rand
    • United States
    • Ohio Supreme Court
    • 7 Agosto 1985
    ...is within the sound discretion of the trial court. Blum v. Blum (1967), 9 Ohio St.2d 92, 223 N.E.2d 819 , syllabus; Wolf v. Friedman (1969), 20 Ohio St.2d 49, 253 N.E.2d 761 ; Cohen v. Cohen (1983), 8 Ohio App.3d 109, 111, 456 N.E.2d 581. This trial court's discretion will not be overruled ......
  • Embassy Healthcare v. Bell
    • United States
    • Ohio Supreme Court
    • 12 Diciembre 2018
    ...those third parties provided to his wife. Howard v. Whetstone Twp. Trustees, 10 Ohio 365, 368 (1841) ; Wolf v. Friedman , 20 Ohio St.2d 49, 53, 253 N.E.2d 761 (1969). The doctrine emerged as a response to the legal disabilities placed on married women under coverture, by which a married wom......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT