Walker v. Laighton

Bell, J. The defendant, without cause, left his house and his family, and went elsewhere to reside. He thereby became responsible to furnish to his wife and children necessaries suitable to his standing and property. Balton v. Prentiss, 2 Stra. 1214; Norton v. Fazan, 1 B. & P. 226; Robinson v. Grinold, 1 Salk. 119; Hodges v. Hodges, 1 Esp. 441; 1 Selw. N. P. 230; Evans v. Fisher, 5 Gil. 569. The wife must be regarded as living separately from her husband, by his consent and desire, in which case, if no sufficient provision for her support is secured to her by her husband, she has authority to pledge his credit for her maintenance. Pidgin v. Cram, 8 N. H. Rep. 350; Lockwood v. Thomas, 12 Johns. 248; Dixon v. Hunell, 8 C. & P. 717; Read v. Legard, 4 Eng. L. & E. Rep. 523; Fredd v. Ewes, 4 Harr. 385; Frost v. Willis, 13 Vern. 302; Alna v. Plumer, 4 Greenl. Rep. 258. The husband, living voluntarily in a state of separation from his wife, is liable for the necessaries furnished to his children residing with her. By suffering them to reside with their mother, he constitutes her his agent, and authorizes her to contract debts for clothing and necessaries for them. Rumney v. Keyes, 7 N. H. Rep. 571; Kimball v. [116] Keyes, 11 Wend. 32; Van Valkenburgh v. Watson, 13 Johns. 480. So far as is shown by the case, the defendant furnished some necessaries, and allowed his wife to obtain others, for which he paid till May, 1853. At that time he forbade those persons who had previously furnished her with articles needed for the family, to furnish her with any thing further on his account, and they declined afterward to supply her, and he published, in one of the newspapers printed at Portsmouth, where the parties resided, a notice that he had made provision for them at his residence, and that he would not pay for any articles furnished them on his account, and called upon his wife and daughters to go to his house to reside, which they refused to do. The husband, who has causelessly deserted his wife, may in good faith seek a reconciliation, and if the wife, under such circumstances, refuses to live with him again without good cause, she becomes from that time the party in the wrong, and has no longer any authority to pledge his credit, even for necessaries, more than she would have had if she had herself originally left him without cause. See Child v. Hardyman, 2 Stra. 875; McCutchen v. McGahay, 11 Johns. 281; McGahay v. Williams, 12 Johns. 293. And it makes no difference that he desires her to change her residence, and to go to live with him at some other place, not unsuitable for her residence, since he has the right to choose his own residence, and it is the duty of the wife and children to conform to his wishes in this respect. Rumney v. Keyes, 7 N. H. Rep. 571; Kimball v. Keyes, 11 Wend. 32. But it is objected that the evidence fails here to show any wish or effort, on the part of the husband, in good faith, to seek a reconciliation, or that his wife should return to live with him again, and the conversation between him and his family, about the first of May, is relied upon to disprove any such wish on his part. This is the same conversation, prov [117] ed on the part of the defendant, to show his desire for a reconciliation. We have, therefore, considered with care what was then said, and our conclusion is, that what was said by the husband, on that occasion, completely disproves any sincere wish that his wife and daughters should remove to his residence, to live with him. It was a formal request to them to go to his house, but it was accompanied with such threatening language, and such unreasonable claims upon them, as were calculated, and, as it seems to us, must have been designed to prevent their removal. The effect of the whole conversation, as it impresses our minds, is rather a notice to them not to come to his house, a threat of undefined evil, if they did come, rather than a sincere invitation to them to come. If the separation had been previously by mutual consent, it seems to us it might be properly regarded as a separation compelled by the misconduct of the husband, after such an interview. But it is not necessary to go farther than to say that the separation having been originally the act of the. husband, the position of the parties was not at all changed by the request to remove to his residence, and live with him, accompanied by such conversation. The operation of this was to neutralize the whole effect of the application, to stamp it with a want of good faith and sincerity, and to leave the parties in the same situation as if he bad said nothing. The husband has the right to select the place where he will provide for his family, provided it is not unsuitable to their condition and to his means, and they are bound to receive it there ; but it is never sufficient for him to notify them that he has made provision for their support at a given place, to relieve himself from their support, if they decline going there. If others have furnished them with necessaries, he must further show that he had in fact made suitable provision for them there. In this case, there is no evidence of any such provision, and in consequence of the want of it, the whole [118] matter of the notice to his wife and family to go to his house to receive their support, fails as to this plaintiff. The notice in the newspaper is also without effect as to the plaintiff, since there is here no proof tending, in the slightest degree, to show that it ever came to his notice. Kimball v. Keyes, 11 Wend. 32; 1 Bac. Ab. 488; Fredd v. Ewes, 4 Harr. 385. A bill for bread, charged in the plaintiff’s account, was presented by the baker to the defendant for payment. This fact is evidence tending to show that the bread was furnished by the baker, on the defendant’s credit, and not by the plaintiff. If it was a case of doubt, it would deserve to be weighed, but the present is hot such a case. The auditor finds expressly that the bread was furnished to Mrs. Laighton, by the plaintiff’s order. He was, of course, responsible to the baker, and the baker is to be regarded merely as his agent in the delivery of the bread. The presentment of the bill to the defendant was entirely immaterial to the plaintiff. Judgment on the report.