Kenyon v. Farris

Pabbee, J. This is a bill in equity. The petitioner alleges that on or about the first day of March, 1876, the respondent wilfully deserted his wife, she being without fault; that thereafter he neglected and refused to furnish means necessary for her support; that she was without' means of support and was [515] in need of the necessaries of life; that at her request during the time of such need the wife of the petitioner advanced from her separate estate from time to time sums of money aggregating $800 to the respondent’s wife for the purpose of enabling her to procure the necessaries of life; and that she expended the money in the purchase for herself of such necessaries as her husband was legally bound to furnish. And the petitioner alleges that he brings this bill as trustee for his wife; and that he is without adequate remedy at law. He prays to be subrogated to the rights of the several persons who sold these necessaries to the respondent’s wife; and that the respondent be ordered to pay said amount to him as such trustee; or that relief should be granted in some other manner. The following cases are precedents for this bill. In Harris v. Lee, 1 P. Wms., 482, the petitioner had loaned ¿680 to the respondent’s wife who had left him for cause, to enable her to pay doctors and for necessaries. The coui't said:—“Admitting that the wife cannot at law borrow money, though for necessaries, so as to bind the husband, yet this money being applied to the use of the wife for her use and for necessaries, the plaintiff that lent this money must in equity stand in the place of the persons who found and provided such necessaries for the wife. And therefore, as such persons could be creditors of the husband, so the plaintiff shall stand in their place and be a creditor also; and let the trustees pay him his money and likewise his costs.” And in Marlow v. Pitfield, 1 P. Wms., 559, the court said:—“If one lends money to an infant to pay a debt for necessaries and in consequence thereof the infant does pay the debt, here although he may not be liable at law, he must nevertheless be so in equity.” In Dean v. Soutten, 9 L. R., Equity Cases, 151, (1869) the marginal note is as follows:—“A person who has advanced money to a married woman deserted by her husband for the purpose of, and which has been actually applied towards, her support, is entitled in equity, though not at law, to recover such sums from the husband.” In giving the decision Lord Romilly, M. R., said:—“ I am of opinion that this is a proper [516] suit and that the plaintiff is entitled to a decree. The cases cited on behalf of the defendant have no application, and May v. Shey, 16 Sim., 588, is overruled by Jenner v. Morris, supra.” Jenner v. Morris, 3 De G., F. & Jones, 45, was a bill to compel the payment of money advanced to a deserted wife. In giving the opinion the Lord Chancellor said:—“An action at law could not be maintained for such a claim. Those who supply the necessaries to the deserted wife may sue the husband at law, she being considered his agent with uncountermandable authority to order the necessaries on his credit. But courts at law will not recognize any privity between the husband and a person who has supplied his wife with money to purchase necessaries or pays the trades-people who have furnished them. Nevertheless, it has been laid down from ancient times that a court of equity will allow the party who has advanced the money which is proved to have been actually employed in paying for necessaries furnished to the deserted wife, to stand in the shoes of the trades-people who furnished the necessaries, and to have a remedy for the amount against the husband. I do not find any technical reason for this; but it may be possible that equity considers that the tradespeople have for valuable consideration assigned to the party who advanced the money the legal debt which would be due to them from the husband on furnishing the necessaries, and that although a chose in action cannot be assigned at law, a court of equity recognizes the right of an assignee. Whatever may be the reason, the doctrine is explicitly laid down in Harris v. Lee, 1 P. Wms., 482, and the other cases referred to. Objection has been made to these authorities that they are very old, and that they do not appear to have been acted upon in modern times. But it may be said, on the other hand, that they have been acted upon without ever having been questioned, and that they are entitled to more respect from their antiquity. I find that they are cited and treated as good law by subsequent text writers on this subject. Considering that to establish the equitable liability of the husband, proof is required that the money has been actually applied to the payment of the debt for which the husband [517] would be liable at law, no hardship or inconvenience can arise from adhering to this doctrine.” In Walker v. Simpson, 7 Watts & Sergeant, 83, the court said:—“Although the husband is to blame for having caused the separation, yet he is only chargeable at law for necessaries supplied to his wife at her request, and not with money lent or advanced to her, because money cannot be considered necessaries, which consist of food, lodging, and raiment. But where the money lent or advanced has been applied to the payment of necessaries furnished to her, equity will put the party lending or advancing the money in the place of the party who supplied the necessaries.” We willingly follow the leading of these authorities, because we think that the line of separation between necessaries and money loaned for the purpose of purchasing them may well be obliterated. So far as the husband is concerned they are practically convertible terms. His burthen will not be increased if he is made liable for money; the scope of the word necessaries will not thereby be broadened; the lender will be compelled to prove an actual expenditure for them; the law has discharged its duty to the husband in protecting him from liability for anything beyond them; it only discharges its duty to the wife by making it impossible for him to escape liability for these irrespective of the method by which he forces her to obtain them. If he has any preference as to that method the law will secure it to him; if he refuses to adopt any, he is not to be heard to complain if she is permitted to elect, providing always that she is kept within the small circle of necessity. It is not certain that credit will, under all circumstances, supply necessaries to the wife; at times they may not be had without money, and accidents of time, place or distance may bring about such a state of things as that a friend may be able and willing to place money in her hands upon her husband’s credit, who cannot personally attend to its disbursement. There is error in the judgment complained of. In this opinion the other judges concurred; except Carpenter, J., who having tried the case in the court below did not sit.