Chamberlain v. Davis

Perley, 0. J. The court instructed the jury that unless the first ground of defence was made out, the plaintiff was entitled to recover for his wife’s services, rendered within the three months next after the 4th of May, 1847; that is to say, the defences of habitual drunkenness and desertion, set up under the statute, if made out, would only answer a part of the plaintiff’s claim. The jury returned a general verdict for the defendant, and therefore must have found that the services were rendered under the agreement that nothing should be paid for them beyond the wife’s support; and the rejection or admission of evidence relating to the other grounds of defence is immaterial, unless the court can see ground to suppose that the defendant suffered some prejudice from the course which the trial took. In our practice, which allows several grounds of defence to be set up in the same trial, it must often happen that evidence may be competent to maintain one defence that would have no legal bearing on the others. Such evidence, however, cannot be excluded, and must be left to the jury under proper instructions to disregard it, except where it is legally competent; and such instructions, in the absence of any exception to the contrary, we must presume to have been given in this case. If the evidence relating to the defence of habitual drunkenness is to be regarded [129] as having no legal bearing on the question of the contract set up, we must understand that it was introduced fairly, with the bona fide intention of establishing that defence, and the defendant has no legal ground for complaint. The present practice of allowing numerous defences to be made under the general issue to the same action, necessarily involves this as well as many other inconveniences. The question on the first ground of defence was, whether the plaintiff’s wife worked under a valid contract that nothing should be paid for her services beyond her support. The evidence was direct that the wife made such a bargain, and the husband would be bound by it if the wife was authorized to make it as his agent. The agency of the wife for the husband is sometimes implied in law, from the circumstances and conduct of the husband, when no actual authority has been given; as, where the husband turns his wife out of his house without cause, and without providing for her support, the law clothes her with authority to charge him, as his agent, for her necessary support, and in such case it would not avail the husband to prove negatively that he gave no authority. In other cases the liability of the husband, on contracts made by the wife, arises from the wife’s being his agent, by previous authority, or subsequent ratification, expressed or implied; and in such case the agency is to found by the jury on the evidence as matter of fact. Where the question of the wife’s agency is left to be found by the jury, it is most commonly inferred without direct evidence, from circumstances, and the manner in which the husband and wife live, whether together or apart. Story on Contracts 96 ; 1 Greenl. Ev., sec. 185. In this case, the evidence introduced to prove desertion by the husband, and neglect to furnish the wife proper support, was competent, as tending to raise a presumption that she was allowed by him to make a contract for obtaining, by her own labor, the necessary support which he neglected to provide for her otherwise. Roch v. Miles, 2 Conn. 638; Castell v. Castell, 8 [130] Black. 240; Gray v. Otis, 11 Vt. 628; Cox v. Hoffman, 4 Dev. & Bat. 180; Hopkins v. Mollineux, 4 Wend. 465; Montague v. Benedict, 3 B. & C. 631; Smallpiece v. Dawns, 7 C. & P. 40; Bentley v. Griffin, 5 Taunt. 56; Holt v. Brien, 4 B. & Ald. 252; Freestone v. Butcher, 9 C. & P. 643; Reeve on the Domestic Relations 80. The evidence in the present case went to show that the husband had neglected to make suitable provision for the wife’s support, and that she had no other means to obtain the necessary support except by her own labor. On such a state of facts it is by no means clear that the law would not imply an authority in the wife to make a reasonable contract for applying her own labor to her support, on the same principle that she could bind him by her contract for necessaries. The case of Roch v. Miles, 2 Conn. 638, would seem to go upon that ground. There was abundant evidence from which the jury might find that the plaintiff knew his wife was working for the defendant on a bargain that she should receive nothing for her services beyond her support. She had lived with the defendant and worked for him, with the exception of a short interval, from 1833. The evidence tended to show that this bargain was made as early as 1839, and the terms of it repeatedly stated over, at different times, till 1847. The jury might well find, without direct evidence, that the husband, knowing all this time his wife was working for the defendant, would be informed of the terms, and assent to them. The plaintiff and the defendant had a settlement in May, 1847, which purported to be of all their affairs, and nothing was allowed or claimed in that settlement for the wife’s services ; from which the inference might' be fairly drawn that the husband was informed of the bargain the wife had made to work for her support, and assented to it. This settlement was evidence that she had previously worked for her support, and was to have nothing more; and if she continued on in the same way, without a new bargain, the presumption would be that she worked on the same terms. Richardson v. Franconia Iron Works, 5. N. H. 294. [131] The admissions of the plaintiff’s wife as to past transactions were properly rejected. Where the wife acts as agent of the husband, her statements, made in execution of the agency, bind him as in the case of other agents; but the admissions of the wife, as such, are not competent evidence against the husband. 1 Greenl. Ev., sec. 189. The communications made by Mitchell to Hobbs and Sanborn appear to have been made on account of the defendant. They were, then, his communications made through Mitchell, who acted as his agent, and were made to Hobbs and Sanborn as the legal advisers of the defendant. The relation of counsel and client existed between the defendant and Hobbs and Sanborn. The statement was made on behalf of the defendant, and related to the subject upon which the counsel were consulted. It was, then, a confidential communication made by the client, through an agent, to his counsel. This brings the case within the rule which protects the communications of a client, made to a legal adviser in the course of a professional employment, against disclosure in any suit. To give the communication this character it is not necessary that a suit shall be pending, or even contemplated, nor that the communication should be made by the client in person ? Was it a professional confidence ? If so, it cannot be disclosed. Greenough v. Gaskell, 1 Milne & Keene 98; Brown v. Payson, 6 N. H. 433; Greenl. Ev., sec. 237, et seq.