Burkett v. Trowbridge

Barrows, J. The defendant carried his wife to the house of her father, the plaintiff, in June, 1868, as he says at her request, and left her there, and never afterwards requested her to return to his home, or made any provision for her support. The somewhat scanty detail of the yircumslances and of the conversations which occurred between the husband and wife at this time is, however, sufficient to satisfy us that he understood perfectly when he carried her there that she was going, not upon a visit merely, but with the intention of separating from him for an indefinite time. The paucity of evidence on his part as to the cause of the separation is somewhat suggestive. There is absolutely nothing tending to show that she was in fault in thus leaving him, or that he did not consent both to her going and remaining. At an interview between the father and the husband, about four weeks after he lmd carried her to her father’s house, the father testifies, “ I asked him if he thought they could live together in the way they had been living. He replied, he did not want to live with her.” A week or two later, and after a libel for divorce, sued out at her instance, had been served upon him, he consented to her taking her clothing, when she and the plaintiff went for it. She remained at her father’s house until she had obtained a decree of divorce, in March, 1869, and this suit is brought against the husband for her board during this interval. But the testimony negatives the idea of any express contract on the part of the defendant to pay the plaintiff for boarding his wife. All that ever passed between them on the subject was about a month before the divorce was granted, when the plaintiff said to the defendant that he didn’t know but he could collect a bill for board, and the defendant questioned his right to do it. Is there an implied promise, under the circumstances above stated ? As the parties have chosen to present the case, it was one of separation by mutual consent, without fault on the part of the wife, and with a knowledge on the part of the husband that the plaintiff was furnishing the support.’and maintenance which he himself was under a legal obligation to provide. We do not think [256] that lie can rid himself of this obligation by carrying her to her father’s house under such circumstances, even though he may feel tolerably certain that, whether he pays, or promises to pay, or says nothing about it, she would not be turned out of doors by her father. The defendant .has no right thus to impose a burden, which by law is his, upon one to whom it does not legally belong, unless he expects and intends at the same time to pay what it is reasonably worth. We do not use the record of the proceedings'in the divorce suit brought by the wife against the husband in this case for any purpose except to establish their legal status during the period covered by the account annexed to the writ. . Starkie lays down the rule thus: “ Mere proof of the marriage is prima facie evidence of the husband’s liability, and it lies upon him to discharge himself by evidence. For although they part by mutual consent, the husband lies under a legal obligation to support the wife, unless she has forfeited her right to maintenance by misconduct, and consequently he is liable for necessaries supplied to her, unless he can show that he himself maintains her, or that she has an adequate provision from some other source.” Starkie on Evidence, Pt. 4, Vol. 2, p. 696, 1st Am. Ed. And the authorities concur in holding that the husband’s liability for necessaries for the wife, in case of separation by mutual consent, still continues, unless he exonerates himself from it by fitting proof. Mayhew v. Thayer, 8 Gray, 175, and authorities there cited. A promise is implied, then, in a case of this description, unless there is something in the evidence to show an understanding that the board was a gratuity. So far as the circumstances under which the defendant carried his wife to plaintiff’s house are developed, it does not seem to us that he could reasonably expect that her board at her father’s should be so considered. It was plainly, from the very first, not understood bjr him to be a visit. It was simply a leaving her there, without any provision for her support, trusting it may be to the paternal instinct to keep her from want. Did the father have any intention to relieve the defendant from [257] the support of his wife, and to take it upon himself to support her gratuitously ? What little talk they did have upon the subject looks the other way. Nor can it be pretended that the claim for board was adjusted when the question of alimony to the wife was disposed of by agreement. The only time that the claim for board had been in any manner asserted previously, it was repudiated by the defendant. At that time nothing whatever was said about it by either party. It is impossible to infer that it was included in that adjustment. Neither the fact that the plaintiff was the father of the wife, nor his intervention in the adjustment of the alimony, can properly preclude him from recovering here. Hancock v. Merrick, 10 Cush. 41; Burlen v. Shannon, 14 Gray, 434; Bowe v. Smith, 11 Allen, 107. Judgment for plaintiff for $114.00 and interest from the date of the writ. Kjest, WAlton, Dickerson, and DaNEORth, JJ., concurred.