Allen, Cummings & Co. v. Aldrich

Eastman, J. Quite a number of questions were raised upon the trial of this action, relating chiefly to the competency of evidence, which we have not deemed necessary to report, inasmuch as, according to our views, the decision of the case turns upon one or two points. Even some of the matters which are stated, have been reported merely that a more correct view of the controversy between the parties might be had. The goods, for the payment of which this action was brought, were furnished by the plaintiffs to the defendant’s — 72 — wife, while she was living apart from her husband, the separation growing out of difficulties between them. The husband subsequently took the goods to his house, under circumstances disclosed, a settlement, or pretended settlement of the difficulties between him and his wife having been made. It was contended upon the trial that there was fraud practised by the wife, in the settlement between her and her husband ; and further, that the plaintiffs were cognizant of it, and, therefore, the defendant was discharged from all liability ^on account of taking possession of the goods himself; but under the instructions of the court, the jury have found that the defendant agreed to pay for the goods, and knowingly carried them home to his house, to be used in his family ; and they have also found that if there was any fraud practised in the settlement, so as to induce him to take the goods, the plaintiffs had no participation in it. The question was distinctly put to the jury, whether the husband agreed to pay for the goods, and knowingly carried them home to his house, to be used in his family; and the jury answered that he did. And the further question was put to them, whether the plaintiffs had any participation in any fraud of the wife upon the husband, or were parties to any such fraud, if any existed, and they had answered in the negative. Now it appears to us that this finding of the jury settles the rights of the parties to this suit; and that, consequently, the causes which led to the separation and settlement between the husband and wife, and all the evidence upon those points became immaterial. The property was taken by the defendant with a full knowledge of all that had transpired, and he promised to pay for it; and whatever deceptions may have been practised upon him by his wife, or whatever promises she may have made to induce him to take the goods, they had nothing to do with these plaintiffs. So long as they were not participators in, — 73 — or parties to the deception, it cannot vitiate the contract made by the defendant with them. Did not the merits of the case turn upon the point which we have stated, we might have to inquire as to what circumstances will justify a wife in leaving her husband, and to what extent she may go in charging him with debts incurred by her during the separation. She might also have to inquire as to her power to take with her her children. Without going into any critical investigation of these questions, we may state, in general terms, that if a husband abandons his wife, or if they separate by consent, without any provision for her support, or if he sends her away, or by his improper conduct compels her to leave his house, he is liable for her necessaries, and he sends credit with her to that extent. 2 Kent’s Com. 124; Harwood v. Heffer, 3 Taun. 421; Houliston v. Smith, 3 Bing. 127; Montague v. Espinasse, 1 Car. & Payne 502; Richardson, C. J. in Pidgin v. Cram, 8 N. H. Rep. 350. If a wife leaves her husband without sufficient cause, and without his consent and against his will, she carries with her no authority to pledge his credit for her support and maintenance. But where the wife resides separate from her husband, proof of her marriage with him, and that the articles furnished were necessaries for her support, will constitute prima facie evidence of the liability of the husband, and of his promise to pay, and the burden of proof rests upon the husband to show that her separate residence and want of means of support is through no fault on his part. Rumney v. Keyes, 7 N. H. Rep. 571. If a husband, living in a state of separation from his'wife, suffers his children to reside with the mother, he is liable for necessaries furnished to them, and she is considered his agent to contract for that purpose. Rumney v. Keyes, 7 N. H. Rep. 571. It must, however, appear that there has been a clear omission of duty on the part of the father,, — 74 — otherwise he will not be charged. Pidgin v. Cram, 8 N. H. Rep. 350. But we will not, for the reasons already stated, pursue these inquiries any further. The course adopted by the court, in putting specific questions to the jury, was not in violation of any rule of practice in this State. It is true, that where the cause is tried upon the general issue, the court cannot submit particular questions to the jury without the consent of the parties. Walker v. Sawyer, 13 N. H. Rep. 191. But where the parties assent it may be done. The labors of the jury are oftentimes facilitated by having the points in the case thus directly presented; and, as was said in Willard v. Stevens, 4 Foster’s Rep. 271, it is no uncommon practice to submit specific questions to the jury, and to give them particular instructions, in order that the questions of law arising upon the case may be clearly presented, and the litigation thereby more speedily terminated. Usually, perhaps, when the court propose to give other than general instructions, the intention is stated to the parties that the objections, if any, may be suggested. But this we do not conceive to be necessary. As the matter is one of practice, and the objections, if raised, could be obviated at the time by a change of the.instructions from special to general, we have no hesitancy in saying that the objection should be raised before the case goes to the jury. When, therefore, the court proposes to put specific questions to the jury, we think it should be taken for granted that the parties assent, unless they then object to the course proposed. The giving of written instructions to the jury, after they had retired to their room, was also entirely in accordance with our practice, and the verdict cannot be disturbed on . that account. Such communications are in the nature of new instructions, and, being returned into court by the jury, can be excepted to in the same manner as if they had been .given in open court. Shapley v. White, 6 N. H. Rep. 172; — 75 — School District v. Bragdon & al. 3 Foster’s Rep. 507. The case of Sargent v. Roberts, 1 Pick. 342, cited by the defendant’s counsel, is not authority in this State. This was so stated in School District v. Bragdon, 3 Foster’s Rep. 517. The motion to set the verdict aside for alleged improper conduct, on the part of one of the plaintiffs, in the presence of one of the jurymen, cannot prevail. If it shall be made to appear that a party has attempted to influence a juror, or has conducted himself out of court, at a place and in a manner calculated to have an influence upon the minds of the jurors, the verdict will be set aside. This is well settled. State v. Hascall, 6 N. H. Rep. 352; McIlvaine v. Wilkins, 12 N. H. Rep. 474; Hilton v. Southwick, 17 Maine Rep. 303. But the facts disclosed by the affidavits of Emerson and Paddleford do not satisfy us of any such improper conduct on the part of Cummings. The affidavit of the juryman, Paddleford, in whose presence the alleged conversation is said to have taken place, entirely negatives the idea that any thing improper could have been said or done in his presence. His affidavit was taken only five days after the alleged occurrence, and it would seem almost incredible that he should have so totally forgotten the whole matter, if it had occurred in his presence. Either Emerson must have been mistaken in regard to Paddleford’s having been present, or else the conversation must have been in so low a tone of voice as,"not to attract attention. It must have been done in a maimer not calculated or intended to have an influence upo/n any of the jurymen. Neither the verdict be set aside for uncertainty, in the finding off the jury. A verdict which is so uncertain that it cannot bA clearly ascertained whether the jury meant to find the issue or not, is bad. Jewett v. Davis, 6 N. H. Rep. 518; Holman v. Kingsbury, 4 N. H. Rep. 104; Coffin v. Jones, 11 Pick. 45; Brunswick v. McKean, 4 Greenl. 508. But {although a verdict is informal, and does not find the — 76 — issue in terms, yet if a finding of the matter in issue may be concluded out of it, it will be sufficient. Pettes & ux. v. Bingham, Exr. 10 N. H. Rep. 514; Foster v. Jackson, Hobart 54, a; Porter v. Rummery, 10 Mass. Rep. 64. The jury, in this case, found generally a verdict for the plaintiffs, and assessed the damages. They also found that the defendant carried the goods sued for to his house, and agreed to pay for them. The agreement to pay was equivalent to a promise to pay, and there was no uncertainty in regard to the five dollars. We have no doubt that there should be Judgment on the verdict.