McFerren v. Goldsmith-Stern Co.

Offutt, J., delivered the opinion of the court. The appeal in this case was taken from a judgment of the Superior Court of Baltimore City against the appellant in favor of the plaintiff, in an action in assumpsit brought by the appellee against the appellant and Adelaide Me Forren, his wifei, to recover the price of certain wearing apparel alleged to have been furnished by it to the said Adelaide MeFerren. The theory upon which the plaintiff" sought to recover against the appellant was that the articles furnished were necessities suitable to the wife’s station in life, which her husband refused to supply and which he furnished her no means to procure, and that therefore she was entitled to purchase them upon his credit and that he thereupon became obliged to pay for them. The wife’s defense to the suit was that she had been compelled to separate from her linsband because of his cruelty and abuse, and that after the separation she was in need of wear ⁵⁷⁶ ing apparel, and since her husband did not supply her with the means to procure it,- she was compelled to buy it on his eredit, and that he and not she was responsible for the payment of the debt so incurred.

The husband’s defense was that he supplied his wife with such things as were necessary to her comfort and convenience in their station in life, and that when she separated from him she did so voluntarily and without -any fault on his part, and that during the separation he paid her a fixed weekly sum for her support and maintenance as alimony in a divorce proceeding which she has instituted; that the sum so aforesaid was fixed by agreement and that he had notified the plaintiff, before a part of the gbods for the price of which the suit was brought had been purchased, that he would not be responsible for any purchases not made by him in person. Since the legal sufficiency of the evidence is not in issue, and as we are not called upon to weigh it, it is unnecessary to review it in detail, and it is sufficient to say that there was testimony in the case tending to support each of these conflicting contentions. The record contains seven exceptions, the first six of which relate to questions of evidence and one to the rulings on the prayers. The six exceptions relating to the admisibility of evidence may be grouped, as they all relate to the action of the lower court in refusing to allow questions asked in the cross-examination of Adelaide MeFerren, a witness for the appellee, which were designed to show that at the time she purchased the articles in question she had means of her own not furnished by her husband for her support, from which she could have paid for them.

The proposition upon which the Court’s rulings in respect to the questions involved in these exceptions rests, is that the husband’s obligation, arising from tire marriage relation, to supply his wife with necessities suitable to her station in life, is not affected by the fact that she -may have means of her own from which she could procure ⁵⁷⁷ them. While this question, in the precise form in which it occurs in this case, does not appear to have arisen in this State, the general principles controlling it have been frequently stated by this Court. In Jones v. Gutman, 88 Md. 364 , the court said: “The husband is bound to provide his wife with such necessaries as in her situation in life are suitable and proper, and if he fail in the performance of this duty, she may contract debts for them, and it will be presumed as a matter of law that she had the power to do so. 1 Black. Com. 443.

In all such cases a presumption conclusively arises whether the parties live together or not.” And that this principle is not affected by the fact that she had means of her own is to be inferred from the language used in Stonesifer v. Shriver, 100 Md. 30 , where there was an effort to charge the wife’s separate estate with her funeral expenses and medical attendance. In holding that these expenses could not be charged against the wife’s estate, it was said: “The duty of a husband to bury his wife in a suitable manner is involved in the obligation to maintain her while living, etc.,” and in Wanamaker v. Weaver, 176 N. Y. 75 , 65 L. R. A. 529, cited in Noel v. O'Neill, 128 Md. 205 , it is said: “It is a settled principle1 in the law of husband and wife that by virtue of the marital relations, and in consequence of the obligations assumed by him upon marriage, the husband is legally bound for the supplying of necessaries to the wife, so long as she does not violate her duties as wife.” If then the husband’s duty to supply his wife with necessities depends upon the marital relation and the obligations incident thereto, it cannot be said to depend upon, nor be affected by her ability to procure such necessities from her separate estate, and such seems to be the general view. Although them are decisions to the contrary (see Hunt v. Hayes, 64 Vt. 89 , 15 L. R. A. 661), it is “generally held that a husband’s duty of support exists, though his wife has a statutory or equitable separate estate.” 13 R. C. L., ⁵⁷⁸ p. 1202; Cunningham v. Reardon, 98 Mass. 538 ; Moore v. Copley, 165 Pa. St, 294; Ott v. Hentall, 70 N. H. 231; 51 L. R. A. 226.

Many of the cases dealing with this question are collected in a note to the case of Wanamaker v. Weaver in 98 A. S. R. 644, in which, after referring to the cases holding a contrary view, it is said: “The soundness of these decisions may well be doubted. The right of a wife to- support from her husband and his duty to support her do not depend upon the inadequacy of her means, but upon the marriage relation. Pier implied authority to pledge his credit springs from his obligation, as husband, to provide for her, and not from the fact that otherwise she will be destitute.” And in our opinion the principles so stated are not only established by our decisions, but are entirely consonant with reason and the best considered authority elsewhere. Applying these principles to the question before us, in our opinion, there was no error in the rulings involved in these six exceptions.

The plaintiff offered five prayers, the defendant, Adelaide McFerren two, and the defendant Frederick O. McFerren seven. All the prayers of the plaintiff and the defendant Adelaide McFerren were granted, as were the first, third, fourth and fifth prayers of the appellant, and the others were refused. The legal principles controlling the rights of the several parties to the case in which this appeal was taken present no difficulty. The husband was obliged to provide his wife such necessities as were appropriate to her station in life, and when, and only when, he failed to provide them or furnish her means to procure them, she became authorized to pledge his credit to obtain them.

The agency thus presumed is one which arises ex necessitate, and is not the conventional agency created by express language or implied from the conduct and course of dealing of the principal. This is obviously true because, if the existence of the facts from which this agency of necessity is implied are established, the hus ⁵⁷⁹ band will not be allowed either to revoke it or deny its existence, whereas in the case of an actual conventional agency he could terminate the agent’s right to act under it at any time. 2 Mechem, Agency, par. 563. But the rule thus stated rests upon the assumption that the husband has neither furnished the necessities nor the means to procure them, and if it appear that he has supplied either the one or the other, then there is no