Rotch v. Miles

Switt, Ch. J.

In this case, the court decided, that where ¡ husband deserts his wife and children, and leaves her keeping a boarding-house, without furnishing the means for her support, and docs not return, or make any provision for them, and the wife continues the business in which her husband left her, conducting in a reasonable and proper manner, to obtain a support for herself and children, the husband is liable for her contracts made in the course of such business : uid the question is, whether this decision was correct. The defendant rests his defence on the ground, That the wife, can charge her husband for necessaries only, without his consent; that this contract was not for necessaries ; and that the facts submitted to, and found by, the jury, do not render him liable.

It will be agreed, that when the husband turns his wife out of doors, or drives her from his house by ill treatment, or abandons her w itliout support, or refuses to furnish her a support, she can charge him with contracts for necessaries, without his consent; and that she has this power in no other cases. But the question in this case, depends upon entirely different principles; and if we do not find a case precisely similar in point of fact* yet if we can find acknowledged principles, which will support the decision, it is sufficient: for though we cannot make law, yet where we find known principles, it is always proper to extend them to analogous cases.

The husband is bound by all the contracts of his wife, made with his consent, express, or implied. Where he permits her to engage in, and carry on, any branch of business, the law will presume his assent to all the contracts she makes in the course of it. The husband is liable for all the goods that come to the use of his family, with ids knowledge, though they are not necessaries. When lie goes from home, leaving his family and business in the care of Ids wife, be constitutes her his agent, to manage the concerns entrusted to her, and to provide for his family : and he is liable for the contracts she makes in the course of such business. It would be strange to say, that as soon as a husband has left *646 his bouse, his wife is disarmed of all power of agency ⅛ that she cannot contract debts in the proper management of his affairs ; and can only charge him for the necessaries of life. To reduce her to this degraded condition, he must do some act to abridge her power, and make it known to the world, by a public prohibition. But if he will not take this measure, it is to be presumed, that he empowers his wife to act for him, and take, care of his business during his absence. It is not pretended, that she may embark in new enterprizes, and plunge him into debt, to his ruin : she must conduct in a prudent manner, and make no contracts but what are ne-cess ary, to perform the trust reposed in her. If she is left in the possession of a farm, she may employ labourers to cultivate it, and preserve the crops j but she may not buy new farms. If he should be sued, she might employ counsel, where it might be necessary for his defence; and dreary would the situation of a family very often be, if the wife is not allowed to exercise this power. Suppose a man of large property should unexpectedly be detained from home till the lease of the house where he left them, should expire; will it be pretended, that the family must be turned into the street, because the wife has no power to take another house ?

When the defendant, while lie resided with his family, permitted his wife to keep a boarding-house, he rendered himself liable to fulfil her contracts for that purpose. When he left her, without breaking up his family, without countermanding her authority, keeping a boarding-house, to acquire the means of supporting herself and family, he assented that she should pursue the same business, and do all acts necessary to accomplish that object. This power did not cease by lapse of time : it continued till revoked, or the marriage was dissolved. He might have broken up his family, and have published to the world a prohibition to trust her; he might have placed her on the footing that she could charge him only for necessaries, and have left his family to suffbr the consequences. But he did not choose to do this j he was willing that she should keep the family together, and, if in her power, provide for them a livelihood, by the business she was pursuing. This was placing her and his family in a much better situation than, by a revocation of all power to bind him, to have thrown them on the town. This is im. sistible evidence, that he assented the wife should continue *647 ihf' employment in which lie left her ; ami 1 ho clearest, principles of justice require, that lie should be bnuml by her con-!rac»s. Leaving bis family under such circumstances, hr, posml on him the same obligations as if he had continued to reside with them. They constituted his family ; he was hound to support them ; and every article received to their use, was received to his use. To take a house, on rent, v as necessary in order to pursue the business in which she was left: it came within the scope of the authority delegated to her; and he ought to be bound by the contract.

The superior court, in this case, also decided, that a husband, who has knowledge that his wife is keeping a boardinghouse, to support herself and children, and does not return to his family, and make any provision for their support, but suffers her to continue the business, and rent a house for that purpose, without expressing any dissent, or publishing any prohibition j and the wife conducts in a reasonable and prudent manner, to support the family; — is liable on her contract, to pay the rent of such house. This decision, I apprehend, is warranted by analogous cases.

When a man permits those over whom he has a lawful con-troul, who are under his government, and who are not legally capable of contracting, to carry on business, without expressing any dissent, publishing any prohibition, or doing any act to restrain them, the law will presume his assent, and he will be liable for their undertakings. If a father, with knowledge that a minor son has set himself up in business, permits him to make contracts, without restraint or prohibition, the law will imply his assent to them : for the son, being under age, cannot make a binding contract; it is the duty of the father to restrain him, if he does not intend to be liable for his engagements : if he does not restrain him ; if he does not, by some proper act make known to the world the disability of the son, so as to put people on their guard ; then it will be presumed, that he assents to his contracts. But if the minor son should make contracts without the knowledge of the father, he will not be liable, unless lie makes himself so, by some subsequent act.

If a man knows, that another is transacting business in his name, as a partner, or is making use of bis name, in cxe ■ cuting notes or other contracts, and does not express his dissent, or prohibit it, or take proper measures to prevent the *648 imposition, the law will presume from, his silence, that he has assented to it; and he will be bound by the acts done in his name, though without any authority from him; and this on the maxim, that he who does not prohibit an act when be has the power to do it, assents to, and commands it: nam qui non prohibit, cum prohibiré possit, jubet.

On the same principle, if a man will permit his wife and children to live together in a family, to manage business and to make contracts without interference or restraint, he assents to it, and ought to be bound by their engagements. When the defendant knew the situation of his family, it was his duty to have joined them, asserted his marital rights, and provided for the maintenance and education of his children. If he did not choose to do this, he had the power to prohibit any person from giving her any credit on his account; and the consequence would have been, that he could have been chargeable for no debts for his family, excepting necessaries ; and for these he would most clearly have been chargeable. But he adopts neither of these measures. What is the language of his conduct ? Wishing to avoid being charged with the necessary expense of providing for his family, as he would have been, had lie advertised his wife : and trusting that she would continue to maintain them, if he did not interpose; he made his election to permit her to pursue the employment in which he knew she was engaged. He well knew, that she kept up a family establishment; that she was engaged in business, and contracted debts, for that purpose; and he never countermanded her authority, or expressed any dissent to her proceedings. Silence, under such circumstances, is equivalent to an express consent. It is true, he did not intend to incur a liability for her contracts : nor does the father who permits the minor son to trade, or the man who permits another to use his name : but the law creates the liability, and compels a man to do, without his consent, what he ought, injustice, to do voluntarily. He might have calculated upon the probability, that the expense would be less to permit her to pursue her business, than to interfere, and put an end to it. But let his views be what they would, the consequence of his conduct is the same respecting his liability. And now, since his wife, by uncommon industry and exertion, has, for a long time, nearly maintained the family, and left only a balance for house-rent, it is too late for him to resort *649 to the pretence, that ibis does not come within the legal definition of necessaries, arnl therefore, he \\ ill not pay if. lie should have taken this ground at an earlier period ; and tiren nobody would have been deceived by his conduct.

It may also be said, that where a man of affluence permits bis wife and children to keep up a family establishment, without interposing on his part, it is still to be considered as his family, notwithstanding his absence j and as he is bound to provide for them, his wife must necessarily be his agdnt for that purpose, if no other is appointed j and that every article received to the use of the family, is received to his use, as much as if he were living with them. Where there is an I agreement for a separation, and that known, or for a separate maintenance, this would make a difference; but here there is no pretence of such an agreement.

It is so reasonable and just, that a man should pay the expense of supporting his own family, and not cheat others out of it, that one would hardly imagine any objection would be made to the doctrine I am contending for. But it is said, that this would subject the husband to great hardship, and would enable the wife to contract debts, whjch would involve him in ruin. But this is an unfounded objection. Experience shews, that it is as safe to trust a wife with a power to manage the concerns of her husband in his absence, as any other person $ and if the husband dare not trust her, or does not mean to trust her, it is easy for him to adopt measures, which will put it out of her power to do him any harm. At any rate, the possibility that the power may be abused, is no reason why it should not be implied, or given.

It is also contended, that the court should have left it to the jury as a question of fact, whether the defendant assented to the contract of the wife. But the question before the court, was, whether the defendant was liable in law for the demand, admitting the facts to be true. The court submitted to the jury all the facts litigated by the parties. Whether these made the defendant liable — or amounted to an assent, so that he became liable — was a mere question of law, to be decided by the court, and could, with no propriety, have been submitted to the jury. It is true, the court might have told the jury, if they found the facts submitted to them to be true, they were warranted to presume an assent, which would make the defendant liable. But 1 here could have been no manner oí *650 difference in effect, between such a charge and the presentj for question of law is as properly, and as fairly, raised, in one mode, as in the other.

It is said, when the defendant proposed to his wife to live with her, and she refused, this amounted to a voluntary separation. But this was a secret act, designed to be concealed from the world ; and nothing can be more unjust than to say, that a husband, by such a secret act, can discharge himself from his liability to fulfil the contracts of his wife, when lie holds her out to the world as his wife, and permits her to act in that character.

But here was no agreement for a separation ; and if there had been one, as it was never made known, it could have no effect. If the defendant was desirous of placing his wife on such a footing that he should not be liable for her contracts, he might easily have accomplished it; but it can never be done by private agreement.

It is said, that after the defendant returned from the West-Indies, and offered to live with his wife, her refusal, and her declaration that he did not possess her affections, was a desertion on her part, and an elopement. But it was never before heard, that the mere declaration of a wife to her husband, that she did not love him, and would not live with him, was an elopement. He has the controul of her person, and may insist on his marital rights. Something more than mere words, on her part, is necessary to constitute an elopement.

This fact was, however, fairly put to the jury, on the evidence ; and they have negated it.

It is further said, that the court ought to have submitted to the jury the fact, whether the contract was not made with the wife only, with an understanding not to look to the husband. But the facts conceded, exclude such presumptions. .No such agreement was made. It does not appear, that the intestate, with whom the contract was made, knew that she had a husband. The only question, then, that could arise, was, whether the contract was made under such circumstan-oes as to bind the husband.

Edmond, Seaward and Chapman, Js. were of the same opinion. Hosmek, J.

The charge to the jury, in my opinion, was altogether incorrect. It embraced principles unknown to the *651 common law, and departed from those wlnich uniformly have been established, A wife, deserted by her husband, and ■without the means of supporting herself and children, is invested with a legal right to take up necessaries, on his credit, for the maintenance of herself and family. Boulton v. Prentice, 1 Selw. N. P. 293. S. C. 2 Stra. 1214. S. C. Bul. N. P. 135. Lungworthy v. Hockmore, 1 Ld. Raym. 444, Elh-erington v. Parrot, 2 Ld. Raym. 1006, S. C. 1 Salk. 118. S. C. Holt, 102. Thompson v. Henrey, 4 Burr. 2177. Harris v. Morris, 4 Esp. Rep. 41. Rawlins v. Vandyke, 3 Esp. Rep. 250. M'Cutchen v. M'Gahay, 11 Johns. Rep. 281. In the term necessaries are comprised, food, drink, clothing, washing, physic, instruction, and a competent place of residence. This is the utmost limit of the common law. Whittingham v. Hill, Cro. Jac. 494. 1 Black. Comm. 466. 1 Mac. Mr. 488.

The principle implied in the charge to the jury, authorizes the deserted wife to commence a hazardous business on the credit of her husband ; and at great expense and risk, to take up necessaries for a very numerous family, that out of tlie profits of her employments she may maintain herself, and her children. The qualifications with which the principle was accompanied, only render it more exceptionable. The interest of the husband and wife equally demand, that she should not be restrained to the employment in which she was left ; but, if she is permitted to undertake business on his credit, that she may resort to that which is least hazardous, and which, at the least expense, promises the most competent support. The second qualification, that the husband’s responsibility depends on the reasonable and proper manner, in which she conducts herself, has no foundation in principle, and would often effectually defeat the obtaining of any credit. The rights of the vendor cannot depend for their validity, on the subsequent act of the purchaser. If they did, no prudent person would run the hazard of trusting to this contingency.

To the charge of the court, there exist many insurmountable objections.

It is a novelty, and introductory of a principle, in subversion of the common law', long, and universally, and indisputably, settled. This observation is all which the case requires. The overturning of principles, used and approved from the *652 mast anticnt period, and the.-removing of established landmarks, is one of the most forcible objections which can be urged. Here I should pause, were I not induced to proceed furl her, out of mere comity to those from whom I differ.

The principle is not necessary to accomplish the object in view. Generally speaking, that credit, which is sufficient for the transaction of business, especially on a large scale, is competent to the acquisition of the direct means of living.

The principle is inadequate to the intended purpose. There is no reasonable certainty, that success will attend the undertaking.

It is a principle highly dangerous. The failure of the wife, which not improbably will result, in the greater number of instances, will be destructive of the husband’s credit, and ruin both him and his family.

It is alarming from its unlimited extent. In illustration of this assertion, I will merely recur to the case before the Court: a wife, accustomed, when living with her husband, to entertain a few boarders in the rear of his shoe-store, is said to be authorized, by his desertion of her, to hire a hotel, at the annual rent of 1000 dollars. By necessary consequence, she is empowered to employ a competent number of servants j to purchase fashionable furniture, for a large mansion j and to supply her table with costly viands, for the accommodation of numerous guests. It is established law, that she cannot borrow money, on the husband’s credit, although she apply it to the purchase of necessaries. Earle v. Peale, 1 Salk. 387. Stephenson v. Hardy, 3 Wils. 388, 9. But, on the novel doctrine of this case, she may contract debts for articles requisite to carry on her business to any amount! A few hundred dollars would be entirely adequate to the annual support of herself and children. Notwithstanding this, it seems that she may onerate her husband with a debt for thousands of dollars, not for the direct maintenance of herself and six children, but to sustain a family ten times as numerous | that out of the expected profits she may acquire a competent livelihood ! The wisdom of the common law strikingly appears, when it is contrasted with a principle pregnant with such mischievous consequences. The common law allows a direct support, while it shields the husband from unreasonable peril and inconvenience. It is safe and salutary, without being penal.

*653 The principle adopted by the court, if admissible under any possible circumstanc es, (which I am clear it is not) could alone be authorized as a dernier resort, after the failure of every attempt to procure necessaries in the ordinary manner. For aught that appears, Mrs. Miles might have supported herself and family, without a recurrence to the dangerous expedient of an expensive boarding-house.

With respect to that part of the court’s charge, founded in the knowledge of the defendant, that his wife was keeping a boarding-house, without his express prohibition, I am of opinion it was manifestly incorrect. No consequence can result against the husband from the knowledge, which would not equally arise from his ignorance, of his wife’s employment. His desertion imposed on her the necessity of acquiring a support ,* and for every legitimate consequence he must be responsible. For consequences not of this description, he can be under no responsibility. The distinction, which the court have thought proper to make, between the knowledge and ignoranpe of the husband concerning his wife’s conduct, is a novélty to which the common law affords no sanction. Besides, if it were of ány avail, it would alone be evidence to the jury of assent on his part, and to them should have been submitted as a fact. In my judgment, however, it is a circumstance, which can be of no possible weight before any tribunal. From the omission of his duty, by the husband, who has deserted his wife, no inference can arise, that be has Invested her with any actual authority.

To the charge of the court there exist other objections. It was contended by the defendant, that before the contract of hiring for the plaintiff’s house, he had offered to live with his wife, and that she had refused his proposal. The proof relative to this proposition, should have been submitted to the jury. Taking it for granted, as I am bound to do, that, it was fairly made and flatly refused, what was the legal consequence i The tables were turned ; the wife from that moment became the deserter, and all the rights of the husband revived. Child & al. v. Hardman, 2 Stra. 875. Tod v, Stokes, 12 Mod. 244. M’Cutchen v. M‘Gahay, 11 Johns. Rep. 281. M’Gahay v. Williams, 12 Johns. Rep. 293. Nor can the plaintiff object, that he was ignorant of the wile’s desertion. “ All persons supplying the necessities of a married woman separate from Iter husband, are hound to make *654 enquiries as to the cause and circumstances of the separations or they give credit at their -peril.” M’Cutchen v. M’Gahay, 11 Johns. Rep. 282. It is no sufficient answer, that the jury were informed, that if the wife had eloped, the defendant was entitled to their verdict. Whether she was in a state of elopement depended on a point of law. They should have been told, that if the defendant had offered to live with his wife, and she had refused, this constituted a desertion on her part.

It was insisted, at the trial, that in point of fact, credit was given to Mrs. Miles exclusively, for the hire of the plaintiff’s house. If this were so, the defendant is not responsible. Metcalfe v. Shaw, 3 Campb. 22. This question should have been submitted to the jury.

On the whole, I am of opinion, that the charge to the jury was incorrect, and that a new trial ought to be granted.

Trcmbuii, Smith, and Petees, Js. were of the same opinion. GouiiD, J.

declined giving any judicial opinion, having been consulted, while he was at the bar, upon another claim against the defendant, resting upon a similar state of facts, and involving the same principles. His professional advice, in that case, it is understood, was against the claim of his client.

New trial not to be granted.