Gill v. Read

Ames, C. J. It is evident from the bill of exceptions, that the plaintiff sought, in this action, to bind the husband for necessaries furnished to his wife, upon the double ground, of authority in law, and of authority in fact, growing out of a previous dealing in the same matter; but as we cannot know upon which ground the. jury proceeded in their verdict, the defendant will be entitled to a new trial for misdirection in matter of law touching either ground of liability. The implied authority of a wife, known to live separate from her husband, to bind him for necessaries — growing, as it does, out of his legal obligation to provide them for her — is wholly dependent upon the existence, under the circumstances of each case, of that obligation; and is unaffected, since he is bound to inquire and inform himself of them, by the actual ignorance or knowledge of the creditor, of those circumstances. So far as this source of authority is concerned, the tradesman, who trusts a wife living separate from her husband, trusts her upon the husband’s credit, as the common expression is, at his own peril; the husband being liable, if in fact he was bound to provide for her, and not liable, if not, under the circumstances, so bound. Chitty on Contracts, 164, and cases cited; Bell on Husband and ■Wife, 27. It is also well settled, that, not only is such author *346 ity revoked by the adultery of the wife, but that even if she has left the husband’s house under circumstances which would justify her in so doing, or has, without cause, been turned out of doors by the husband, and afterwards commits an act of adultery, this will relieve the husband from the obligation to provide her with necessaries; and hence, from all liability for them upon the mere ground of her implied authority as a wife to charge him with them. Govier v. Hancock, 6 T. R. 603, 604. So far, then, as the plaintiff’s claim proceeded merely upon the implied authority of the defendant’s wife to bind him for necessaries furnished to her, the husband’s defence, that he had turned her away because she had committed adultery, or that, whilst living separate from him, she had committed adultery, was good in law; and to avail him, did not depend,' as was supposed by the court below, upon a knowledge of the fact of adultery by the plaintiff, whether to be brought directly home to him by proof, or to be inferred from general notoriety. The main question, however, raised by the bill of exceptions, is, whether the defendant was estopped from offering in defence proof of the adultery of his wife, prior to the accruing of plaintiff’s account, by the decree of this court refusing him a divorce ccmsa adulterii? We know not upon what ground the court below founded its notion of such an estoppel. If this court had granted the divorce for cause of adultery, it clearly would not have estopped the plaintiff from contesting, in this action, the fact of adultery; since, as he was no party, nor the privy of any party, to the proceeding, he could not be bound, or in the least affected, by the decree. Robins v. Crutchley, 2 Wils. 124. As he could not be prejudiced by a decree in a proceeding to which he was not a party, so neither now can he avail himself of it against the defendant as evidence, and especially as conclusive evidence, that the wife of the defendant did not commit adultery prior to the petition for divorce, or at any time between the petition and decree. As between the plaintiff and defendant, the fact of the adultery is res nova — never before litigated or decided ; and the exclusion of the testimony offered by the defendant is warranted by no such policy — wt sit finis litium — as lies at the bottom of the rule which makes judgments conclu *347 sive between parties and privies. 1 Starkie on Evid. part 2, § 62, and cases cited. For these reasons, pertaining, it will be noticed, solely to the ground of implied authority in the wife to bind her husband, and not at all touching the other ground upon which the plaintiff claims to have been entitled to credit her, there must be a new trial of this cause. For the purposes of the new trial, we take notice of-two classes of items in the bill of particulars of the plaintiff, one of which has, and the other of which-has not, so far as the bill of exceptions shows, been the subject of a ruling by the court. The first of these consists of the three items for money loaned to the wife. It is old law, that neither a wife nor an infant has credit to borrow money; the credit being for necessaries, and not for money to buy them with, which may be misapplied. Earl v. Peale, 1 Salk. 386. If, indeed, the lender lays out the money, or sees it laid out, for necessaries, he may charge them as provided by himself; and thus, the application of the loan is left, as it should be, at his peril. Ib.; and see Stone v. McNair, 4 Price, 48, 49. If, as we understand the bill of exceptions, the money was furnished by the plaintiff directly to the wife, and there was no evidence that the same was applied by her to the purchase of necessaries, which the plaintiff charged, as he might, as furnished by himself, the ruling, as to these items, was erroneous. The other items of claim in the account of the plaintiff to which we refer, are, those for the board and clothing of the defendant’s infant child. These stand upon a different footing from necessaries furnished to the wife ; since the father’s obligation to provide for his child is not affected by her misconduct. If, notwithstanding such misconduct, he suffer his child to live separate from him with her, he thereby constitutes her his agent to contract for the child’s necessaries, and is liable to those who furnish them upon his credit. Rumney v. Keyes, 7 N. H. 571. Verdict set aside and new trial granted, to be had at next term of the court of common pleas for the county of Newport.