Jordan Marsh Co. v. Hedtler

De Courcy, J.

There was evidence tending to prove the following facts: The defendant and “Winefred” B. Washburne (hereinafter called Mrs. Hedtler) went through the form of marriage on September 12,1917. Thereafter until January 3, 1918, they lived together as husband and wife in Winchester, in a housekeeping apartment; she assisted him in his automobile supply business; and he introduced her to his friends as his wife. On November 8, .Mrs. Hedtler made an application to the plaintiff for credit, and gave references as to Mr. Hedtler’s financial ability. The credit *45 manager made investigations looking up Hedtler’s real estate, and making inquiries of the Winchester Trust Company, where he did business. During that month Mrs. Hedtler purchased from the plaintiff a scarf, book, table and four set saucepans, all of the value of $13.50; and on January 2, 1918, a fur coat, valued at $200. On the plaintiff’s books the account was charged to the defendant. On January 3, Mr. and Mrs. Hedtler separated and she removed practically all the household goods, which belonged to her. In September the defendant petitioned for an annulment of said marriage, on the ground that she had a husband living at the time; and a decree of nullity was entered.

Marriage imposes on the husband the general legal duty of supporting his wife; and if he neglects or refuses to supply her with what is necessary for decency and comfort in his condition in life, he is liable to third persons who furnish her with such necessaries. Eames v. Sweetser, 101 Mass. 78 . That liability need not be based on the wife’s agency. It may exist even against the husband’s will, or after any agency would have ended with the death of the wife. Cunningham v. Reardon, 98 Mass 538. Alley v. Winn, 134 Mass. 77, 79 . In the present case, however, this legal liability resulting from the marital relation has no application, because there was no valid marriage; and the plaintiff has not shown that the defendant estopped himself in this case from denying that Mrs. Hedtler was his lawful wife. See Ann. Cas. 1913 A 236 note; 1913 D 1062 note. The only ground of liability on which the plaintiff can recover in this case is that of agency. We are of opinion however, that there was evidence entitling the plaintiff to go to the jury on the ground of implied agency and of ratification. It could be found that the defendant by cohabiting with Mrs. Hedtler and holding her out to the community as his wife, impliedly authorized her as his agent to purchase the necessaries for herself and the household, in accordance with the ordinary pr'actice of married people. And there was also evidence of his ratification of her agency when the defendant, on being notified of the purchase of the fur coat, did not deny his liability, but wrote to the plaintiff on January 2, 1918, instructing it “not to give any further credit to my wife, Winifred B. Hedtler.”

Some of the articles sued for manifestly fall within the class of *46 necessaries. Even as to the fur coat, in view of the evidence as to the defendant’s means, and the situation of the, parties, we think it was for the jury to say whether it was necessary in the legal sense. Raynes v. Bennett, 114 Mass. 424 . Conant v. Burnham, 133 Mass. 503 . The question whether the defendant was in default in failing to supply her with money to buy clothes, and whether these goods were supplied on his credit, were also for the jury to determine. Dolan v. Brooks, 168 Mass. 350 . Ann. Cas. 1915 A 3 note.

Exceptions sustained.