Marshall v. Hill , 1915 Pa. Super. LEXIS 104 ( 1915 )

Opinion by

Trexler, J.,

The plaintiff did the family washing for the wife of the defendant and now brings suit against him for the amount due her. When a wife takes up necessaries for the family of her husband and herself the primary presumption is that she is acting as his messenger or agent; the primary duty of furnishing necessaries being on him. This presumption disappears when she separates from him unless the separation is shown to be justifiable: Walker v. Simpson, 7 W. & S. 83. When he wrongfully compels her to withdraw from him without means of support there is an implication of law that her husband has given her credit to obtain necessaries suitable to her condition. He who furnishes necessaries to a wife so separated on the credit of her husband does so at his risk and must show that she has been abandoned by her husband or forced to leave his residence: Monahan v. Auman, 39 Pa. Superior Ct. 150; Allen v. Rieder, 41 Pa. Superior Ct. 534; 2 Kent’s Comm. 146.

It was admitted at the trial that the wife’s separation from her husband was justifiable. It also appeared in evidence that the husband had made provision for his wife. If proper provision has been made for a wife her husband is not hable even for necessaries furnished for her support: Cany v. Patton, 2 Ashmead, 140; Endlich & Richards on the Rights of Married Women, par. 81; Husband’s Married Women and Trusts, p. 43.

The husband having provided support for his wife by the payment of a monthly sum to her would, without any reason appearing to the contrary, be no longer liable for her debts for necessaries contracted by her. It therefore fell to the plaintiff, if she would establish her suit, to prove that the washing she furnished was not only necessary but that it was not already provided for by the allowance which the husband was giving to his wife. To do the latter she offered in evidence a letter written by the attorneys of the husband, their power to bind him not being disputed, which letter after offering assistance to Mrs. Hill and arranging to pay her room rent and to get credit for groceries, meats and vegetables, and board at the hotel, if necessary, for herself and children, contains the following, “If you desire a servant, Mr. Hill is willing to employ such for you if necessary, and upon application to Mr. Hill he will also furnish all necessary clothing for the children and yourself and will pay bills promptly submitted to him for all things that may be necessary.” The trial judge referred the question as to whether the washing was a necessity to the jury. He construed the letter as giving Mrs. Hill the right to obtain necessaries and that the husband would pay the bills. This construction was the only one that could be put upon the letter. The language is plain and unambiguous. It fixed the financial arrangements of these parties and as to the extent of its terms removed all former limitations as to his liability for her contracts. It is argued that as this plaintiff was not privy to the arrangement made in the letter it could not be used by her as a basis to support her claim. This position we think is not tenable. Although not a party to the letter, her right to recover must be found in the relations of Hill and his wife. She' must recover through Mrs. Hill. The liability of the husband is fixed by the letter and in this view it is all important.

Objection is made that the plaintiff’s statement and proofs vary. We see no merit in this contention. The statement declares for work done for the defendant, gives the items and in addition gives a copy of the letter relied upon as giving authority to the wife to contract for necessaries. Proof was submitted and the case tried along the same lines as laid down in the statement.

It is urged that suit should have been brought against husband and wife under the Act of April 11, 1848, P. L. 536, par. 8, and that a suit against the husband alone is irregular. That act provides that in order to charge the wife, the creditor may bring a joint suit against husband and wife and after judgment have execution against the husband and if no property is found proceed against the wife. There is nothing in the act that provides where the husband is sued the wife must be joined. The cases cited by appellant: Berger v. Clark, 79 Pa. 340; Davidson v. McCandlish, 69 Pa. 169, are authority for the position that in order to hold her he must be joined. They have no application to the case where the endeavor is to hold him alone.

All the assignments of error are overruled and the. judgment is affirmed.