I. N. Thorne & Co. v. Kathan

The opinion of the court was delivered by Redfield, J. This suit is to recover payment for necessaries furnished the wife. The court have found that the medicines furnished the wife by the plaintiff, were necessaries, but furnished the wife without the consent or approval of the husband. About October 18, 1873, the wife, “ unbeknown to her husband, went to [523] reside with her son-in-law, Charles Puffer,” and never went back to the defendant, her husband. The husband posted her for desertion, and subsequently obtained a bill of divorce from her for that cause. I. After the wife went to Puffer’s to reside without the knowledge or consent of the husband, there seems no question that the husband regarded and treated the matter as a desertion on her part. “ Unbeknown to him ” she went elsewhere to reside. The fact that up to that time the defendant had paid the plaintiffs the medical prescriptions of the doctor for the wife, and that after that Puffer paid for such prescriptions, was sufficient notice to put the plaintiffs on inquiry as to the defendant’s liability for necessaries furnished the wife. The plaintiffs knew that defendant’s wife had gone to reside at Puffer’s, and furnished medicine to the wife on the promise of Puffer to pay for the same if the defendant did not. The charges for such medicine were made to Puffer, and paid by him up to December 17, 1873. After that the charges were made to the defendant’s wife. There is and can be no dispute as to the law governing this subject. It is very fully and clearly stated by Poland, J., in Norcross v. Rodgers, 30 Vt. 588 : “ In order to enable one to recover for necessaries furnished a wife who lives apart from her husband, it must be shown, either that they live apart by mutual consent, or that the separation is by the fault of the husband.” The court have found “ the relations between defendant and his wife were not, from some cause, what ought to exist between husband and wife.” But the court have not found nor stated what was the “ cause,” nor that the defendant was in any way at fault in the matter. When the wife abandons her husband’s bed and domicil “ unbeknown to him,” and makes her abode and home elsewhere, she does an act inconsonant with conjugal rights and duties.; she deserts her duties and abandons her rights, and does not carry with her her husband’s ci’edit, unless she show that this enstrangement is caused by the fault of the husband. No such fact is found in this case, and no statement is made from which [524] such inference may be drawn. As the case is stated, she voluntarily made herself an alien from his house and home, and from his care and protection. The result is that the judgment of the County Court is reversed, and judgment for the defendant to recover his costs.