Hall v. Weir , 83 Mass. 261 ( 1861 )

Bigelow, C. J.

The instructions given to the jury were accurate and well adapted to the facts proved at the trial. There was evidence that the husband, without legal and sufficient cause, had deserted his wife and family, and furnished no adequate means for their support. Under such circumstances the wife has an implied authority, derived from the legal duty of the husband to make suitable provision for her and her children, to act as bis agent and procure such supplies as might be necessary on his credit. 2 Bright on Husb. & Wife, 10. Emery v. Emery, 1 Y. & J. 501. S. C., 6 Price, 336. Emmett v. Norton, 8 C. & P. 506. The articles which were sold and delivered to the wife by the plaintiffs were of the class of necessaries. The question whether they were such as were actually necessary and proper under the circumstances in proof was rightly left to the jury. The court was not bound to pass on the weight or sufficiency of the evidence. Lane v. Ironmonger, 13 M. &. W. 368.

If the defendant wished for any specific instructions as to the effect to be given to the fact that the wife received the earnings of the daughters, he should have asked it at the trial. He cannot now avail himself of an omission which he made no effort to supply at the proper time. Besides, we are bound to infer that, as the fact was before the jury, they gave due weight to it in deliberating on their verdict. Exceptions overruled.