Scheive v. Kaiser

By the Court, Marvin, J. It was said, upon the argument, that Norton v. Rhodes, (18 Barb. 100,) was controlling with the referee, in this ease. If so, I think the referee misapprehended or misapplied that case. Horton and others, as superintendents of the poor, brought that action against the husband to recover for the hoarding, &c. of his wife by the county. The action was attempted to be sustained upon the common law relating to husband and wife. It was held that the superintendents of the poor could not, as public officers of the county, interpose between husband and wife, and by supporting the latter, entitle themselves as such officers, to maintain an action against the husband. It was said in the opinion that if an individual sees fit to furnish necessaries to a wife, and resort by action to the husband, for compensation, upon the ground of ill usage, &c. he may undoubtedly do so, and a court will hear the proofs and allegations of the parties and decide in accordance with the well settled principles of the common law. It might be decided that the husband was not in fault; and if so, then the plaintiff would not recover. In the present case the plaintiff made an arrangement with the defendant to support his wife, founded upon a valuable consideration. The agreement is evidenced by a bond, the condition of which contains recitals of the agreement and consideration, the latter being $350, “to be used and appropriated by him, (the obligor,) for the benefit of said Frances Scheive,” and further agreeing “to keep and maintain and forever support the said Frances Scheive.” Then follows the condition “that the said Kaiser shall, from time to time, use and apply the aforesaid money for the benefit and support and maintenance of said Frances Scheive, as the same shall be necessary, and shall keep and save said Frederick Scheive forever harmless, on account of the support and maintenance of said wife, said Frances Scheve, and shall save and pre [112] vent said Frederick from any liability for the support and maintenance of said Frances.” The referee has found that the defendant has failed to support and maintain Frances, and finds that she was justifiable' in departing from the defendant’s house; and that she was justified in refusing to return to his house. Here is a clear finding of a breach of the agreement recited. The referee seems to have confined his inquiry to the conditions in the bond to keep the plaintiff harmless and to save and prevent him from any liability for the support, &c. of Frances, and coming to the ■ conclusion that the plaintiff was not liable to the overseers of the poor, or the superintendent, notwithstanding his conditional promise to pay, he decided that there had been no breach of the covenants of the defendant to the plaintiff, in the bond. In this I think he erred. . The recital, in the condition of the Tpond, contains an express agreement by Kaiser “ to keep and maintain and forever support the said Frances Scheive.” This agreement or covenant was broken. But it is said that this covenant is only to be found as one of the'recitals in the condition of the bond, and that the real conditions are those following, relating to the application of the $350 for the benefit and support &c. of Frances, and to keep harmless, &c.; and that the obligation could only be enforced in case of a breach of the conditions thus specified ; that it could not be enforced for a breach of the covenant * to keep and maintain and forever support.” I am inclined to think this would be too narrow a construction. It seems, on consulting the complaint, that the pleader has only noticed the conditions following the recitals, and has omitted to notice the covenant “ to keep and maintain and forever support.” The reference to the bond, in the complaint, is • quite general. It does not notice all the provisions in it. The bond was put in evidence, and I think, putting a liberal construction upon the complaint, its allegations are broad enough to enable [113] the plaintiff to avail himself of all its provisions. But apply the strictest rules to the pleadings, and regard the mortgage as only given “to- secure the payment of the principal and interest mentioned in the condition of said bond, to the use, benefit and maintenance of said Frances Scheive,” as alleged in the complaint, and there was a clear breach of the condition proved. There is no pretense that the defendant “ from time to time used and applied the $350 for the benefit, support and maintenance of Frances Scheive as the same should be necessary.” The cause of action was established, and the referee .erred in dismissing the complaint. [Erie General Term, November 16, 1868. There is no foundation for the objection that the action was improperly brought by the plaintiff and in his name. The judgment must be reversed, and there must be a new trial, and the question of costs is reserved to the final trial. Daniels, Marvin and Darker, Justices.