Bonney v. Perham

Mr. Justice Waterman delivered the opinion of the court. If a husband without justifiable cause turns away his wife he is bound for necessaries suitable to his station and estate supplied to her upon her order. If husband and wife live together, and he will not supply her with necessaries, she can then pledge his credit therefor; but if he provide for her he is not bound by her contracts unless they are made by his authority or with his concurrence. Martin v. Robson, 65 Ill. 120. If the husband abandons his wife, or without reasonable cause turns her away, or by ill usage compels -her to leave him, he is liable for her necessaries, and sends credit with her to that extent. Schouler on Husband and Wife, Sec. 111. If the wife, without sufficient cause, voluntarily leave her husband against his will he is not liable for her maintenance elsewhere, and she can not bind him therefor. Schouler on Husband and Wife, Sec. 111. While the husband and wife live together she is presumed to have authority to bind him for necessaries suitable to his estate and station, and the burden is upon the husband to show that for some reason such authority did not exist.' Schouler on Husband and Wife, sections 106, 107, 108; Compton v. Bates, 10 Ill. App. 78, 82, 83. Where the husband and wife are voluntarily living apart, not temporarily, but permanently, the presumption of authority upon the part of the wife to bind the husband by orders for necessaries, ceases. For necessaries furnished under such circumstances the burden is upon the tradesman to show that the wife was in need of the goods; that the husband failed to supply her, and that the wife was not at fault, or that the husband authorized or assented to the purchase. Schouler on Husband and Wife, Sec. 119; Vol. 9, 1st Ed. Am. & Eng. Encv. of Law, p. 815-7, 810-11; Schunckle v. Bierman, 89 Ill. 454-156; Wilson v. Bishop, 10 Ill. App. 588-590. . In the present case, when the goods for which this suit was brought were purchased, Mr. and Mrs. Bonney were permanently living apart, she in Iowa, he in Illinois. There was no evidence that he had not supplied her with necessaries, on the contrary there was evidence that for a man of his means he had furnished a very large sum of money with which to supply her wants, the evidence being that of his entire income of $4,000, he has devoted from sixty tó seventy per cent. There was no evidence that the living apart was without her fault or because of his. Bor did it appear that these goods were, or that any goods have ever been supplied by the plaintiff upon the credit of.the husband. Mrs. Bonney had frequently, before, purchased similar goods of Mrs. Morris; the charge was always made, as in this case, to Mrs. Bonney; the present bill was purchased by Mrs. Bonney December 1, and 2,1899. A bill therefor was rendered to Mrs. Bonney; thereafter a bill was sent to Mr. Bonney. July 23, 1900, Mr. Bonney, by then receiving a bill, first learned of the purchase of these goods. The husband is not liable when the goods are supplied on the credit of a third person or that of the wife. Schouler on Husband and Wife, Sec. 109; Metcalfe v. Shaw, 3 Campbell, 22; Stammers v. Macomb, 2 Hend. 454; Bentley v. Griffin, 5 Taunt. 356; Carter v. Howard, 39 Vt. 106; Bugbee v. Blood, 48 Vt. 497; Patterson v. Gandasequi, 15 East, 62. Nor is it the case, as the jury were instructed, that where goods are sold to the wife upon the credit of the husband, if the goods are necessary and suitable to the wife’s position in life, it may be inferred that she makes the purchase as the agent of her husband. Her position in life may be far above his. She may be the president of a college; the chief officer of a fashionable woman’s club; an author of distinction; a great artist or orator; the pastor of a large and wealthy church; and he a clerk, or servant, at a salary of forty dollars a month. In determining what are necessaries which the husband is bound to supply, as they must be paid for from his estate, the estate and degree of the husband should be considered. Compton v. Bates, 10 Ill. App. 78, 85. Neither the general nor the special verdicts are sustained by the evidence. Mrs. Morris testified that the goods in controversy were sold by her to Mrs. Bonney and belonged to her, Mrs. Morris; that she conducted her business under the name of Perham, and had done so for twelve years. The suit should have been brought by Mrs. Morris in her own name and not “Anna M. Perham, for the use of M. Morris;” describing herself, if she desired, as M. Morris, doing business under the name of Perham. The judgment of the Superior Court is reversed and the cause remanded.