
    Harry S. Wilder, Respondent, v. William Gould Brokaw, Appellant.
    Second Department,
    December 30, 1910.
    Husband and wife—' liability of husband for wife’s necessaries — board of sister—intent of one extending credit.
    In an action by an innkeeper to recover from a husband for necessaries furnished his wife, who was living apart from him, the plaintiff cannot recover for, the board and lodging of the wife’s sister, who lived with her for over a month, on the ground that it was a necessary furnished the wife, in the absence of evidence that any peculiar condition of mind or body made the sister’s ' presence a necessity for the wife.
    Where it appears that the innkeeper knew the wife personally; that the account on the books was with her; that the bills were sent to her and that when she- ■ left the inn her luggage was held for failure to pay the bill, it is error to refuse to submit to the jury the question-as to whom credit was given.
    The wife was competent to contract personally for her board and lodging, and, even though there was no express agreement by her, surrounding circum- . stances might establish an agreement to make herself personally liable for the board and lodging.
    Such an agreement, however, would only be relevant as bearing on the intent - of the landlord and whether he extended' credit to -the wife or to the husband.
    Appeal by the defendant, William Gould Brokaw, from a judgment of the Supreme Court in favor of the plain till, entered in the office of the clerk of the county of Nassau on the 26tli day of April, 1910, upon the verdict of a jury, and also from an. order entered in said 'clerk’s office on the 25th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. McIntyre [Eugene L. Bushe and Fdwa/rd Weiss with him on the brief], for the appellant.
    
      Arthur J. Baldwin [Herbert 8. Murphy with him on the brief], for the respondent.
   Jenks, J.:

The judgment re'sts upon an innkeeper’s charge for the keep of the wife of the defendant when she was living apart from her husband. Within a day or .two after the' coming of Mrs. Brokaw to the inn, her sister came also, whereupon a larger apartment was assigned to Mrs. Brokaw to accommodate the sister, who remained with Mrs. Brokaw throughout her stay of more than a month. The; lodging and the board of the sister weré charged in the one account.The claim was-for $1,352, and, as the verdict is for $1,409.28, it is. "evident that the jury found in the full amount, so' that we 'have to consider this item. The- jury were instructed that, although a hus-- ■ band was not required to support his' sister-in law, nevertheless:" they could determine under the circumstances of this case whether the sheltér and food for Mrs. Brokaw’s sister "were no.t within Mrs.. Brokaw’s necessaries. • ' ' z ' _

■ In' Keller v. 'Phillips (39 ÍL T. 354) the court say: “The husband is bound ,to provide for.' her * * . * ; whatever is necessary for their suitable clothing and maintenance,, according to his and their situation and condition in life.”' Conceding that the word .“-necessaries” is an elastic-term not confined to clothing to cover ■thé body and' to. food to sustain it;, that its -scojje. must be determined in. consideration of' the wife’s station in life, her .husband’s means and her situation, and even that it may include the reasonable and proper, requirements for the essential comfort'of the body and the mind (Conant v. Burnham, 133 Mass. 503), yet T am' of opinion that the charge in question should not.have been submitted to the. jury ;as one which" they might find was within that term. In Hamilton v. Lane (138 Mass. 359) the court say : “ It has always been held that those, articles were to be considered necessary which were suitable to thé degree and condition of life of the ' person to. whom-they were furnished, having regard to the estate of the infaqt or tbie husband ; and that it was not to be confined to - those - which were required to sustain life or'to preserve decency. "While in certain cases it-would be the duty of the-court'to direct-the jury authoritatively that'.the articles furnished could not. be necessaries, in others it would be for the jury to say whether they were such as ".could come within that class, and also to determine'whether in amount, quality, quantity and value they were suitable and proper in the'particular case. .(Raynes v. Bennett, 114 Mass. 424, and cases cited.)” I may add that as to the husband’s méans,'not ,bis actual fortune but" his usual style of living, may, as to third persons,afford the proper - criterion. I can conceive of a case where a wife living apart from her husband might be in such an'abnormal state of mind or body as would make' the. constant, presence of a near relative a necessity. Ór the social requirements might 'justify' the charge for the services of a woman as protector. But in this case, although the presence of Mrs. Brokaw-’s sister may have been a relief to her solitude or may have afforded the comfort of companionship, it does not appear that any peculiar condition of mind or body made that presence,a necessity, and it does appear that Mrs. Brokaw was attended by a maid. The learned court in the course of the trial justly and tersely remarked that Mrs. Brokaw was not required to live the life of “ a hermit.” I agree that she was riot required to shut herself in from the world, but none th¿ less I think that she was not justified in charging the support of her sister for this considerable period of time upon her husband. This case presents an account for the lodging and the food for two women, for substantially the same period, which must, be justified on the theory that the husband of one of them perforce of that relationship was bound under the circumstances to furnish as a necessary to his wife this maintenance of her sister, and that his wife ás his agent ex necessitate could' contract therefor, I think that the verdict cannot stand. (See Schouler Husband & Wife, § 123.) "

I think that the learned court should have submitted the question as to whom credit was given to the jury. As matter of fact, it appears that Mr. Brokaw was a stranger to the transaction. . The theory of the action is that Mrs. .Brokaw was constituted by law the agent of her husband, for the plaintiff alleges that the liability was incurred at the husband’s instance and request. (See Wanamaker v. Weaver, 176 N. Y. 75.) But the. question then before the court was not whether the wife should be held personally, but whether the merchant intended to extend credit to her personally or whether, he in effect made the contract with her as the agent of her husband. (Arnold v. Allen, 9 Daly, 198.) When Mrs. Brokaw came to the inn, the innkeeper, although he knew she was a married woman, could of course regard .her as one competent to contract for her shelter and food and become liable therefor. (Tiemeyer v. Turnquist, 85 N. Y. 516; Conlin v. Cantrell, 64 id. 217; Crisfield v. Banks, 24 Hun, 159; Muller v. Platt, 31 Hun, 121; Schouler Husband & Wife, § 109.) The, innkeeper knew Mrs. Brokaw personally, and had 'known her before her marriage. It does not appear what conversation was had between him and her at that time. The account upon the books was with'Mrs. W. G. Brokaw, and was for rent of apartment,' 'restaurant, sundry charges and cash, $1,352.33 from December 19th to the following January 22d. ' When the bills were made up from the ledger, they were sent to Mrs. Brokaw. The innkeeper never made'a demand on Mr. Brokaw, and he could not say that they ever'sent a bill toliim' addressed to W.- G. Brokaw. The inhr'keeper, ref erring, to. a letter received. from Mr. Brokaw’s' counsel ' under date of January'6,-1909 (which the court excluded), testifies: “ After we received the letter * .* * I don’t .th'inlc we went on furnishing -credit, to Mrs. Brokaw very long after that.” But the. account ran oh until January- 22d, and when Mrs. Brokaw left' the inn -the innkeeper held-her luggage, and in order to secure .it she pledged her jewels, It appears that at that time thé'innkée25er said that, he had communicated with Mr. Brokaw., who had refused .to pay the bill. However strong or weak, here are facts which are ' relative .to the question to whom credit whs extended. (Debenham v. Mellon, L. R. 6 App. Cas. 33, 34; Stammers v. Macomb, 2 Wend. 454; Pearson v. Darrington, 32 Ala. 243 Carter v. Howard, 39 Vt. 106; Freestone v. Butcher, 9 C. & P. 643, 649; Schouler, supra, 109.) Wherefore I think that the learned court -erred in refusing the submission of this- question to. the jury. (Authorities supra; Mitchell v. Treanor, 11 Ga. 324; Jewsbury v. Newbold, 26 L. J. C. L. [N. S.] 247.) But the, learned counsel for the respondent insists that there could be no liability on the part of the wife unless she made an “ express agreement,” and he cites a number of cases' wherein this expression was used.' But' -as-1 have-sajd, the question in' this feature of the-case is whether the innkeeper intended .to-give credit to the wife or to the husband, and this, proposition is-relevant only so'far'asdt bears .upon- the intent of the innkeeper; In the eye of the law Mrs. Brokaw was just as free to contract as was Mr.-Brokaw* and hence the innkeeper was -not dealing with one under any legal disability. By “ express agreement” I think-that the writers-of the opinion mean the■ distinction. “ in the manner in which the' parties have expressed their agreement,” which'it is said “ consequently- affects the nature of the evidence by which the agreement can be [proved father than the nature of the contract itself.” .(1 Pars.' Cont. [8th ed.j. 6, h. 1.) And Keener on Quasi-Contracts ,(p. 5) says: “The terms, ‘express contracts ’ and £ contracts implied in fact,’ are used then to indicate, not a distinction in the principles of contract, but a difference in the character of the evidence by which a simple contract is proved. The source of the obligation in each case is the intention of the parties,” The cases cited by the learned counsel present the circumstance of cohabitation when the debt was contracted by the wife for necessaries either for the common family use or at least for her clothing Or that of her children while under the common roof. Tinder such circumstances cohabitation in itself raises a broad presumption of the husband’s assent. (Debenham v. Mellon, supra, 36; Wanamaker v. Weaver, supra, 80; Schouler, supra, § 106; Abb. Tr. Ev. [2d ed.] 221, citing 2 Whart. Ev. § 1257.) And it appears that the courts in stating their proposition, are careful to limit it with the circumstance of cohabitation. Of course, we cannot say, since the decision in Hatch v. Leonard (165 N. Y. 435), that the presumption of agency could not obtain upon facts shown, even when the wife was apart, but I am discussing the presumption that arises from cohabitation itself. I think, then, that in the absence of evidence of an “express agreement,” as that term is used, the surrounding circumstances may establish an agreement by the wife to make herself personally responsible. In Matter of Totten (137 App. Div. 273) Soott, J., for the court, says: “ There is no doubt of the rule that the primary liability for medical treatment furnished to a wife rests upon her husband, and that the wife is not personally liable therefor in the absence of a special agreement by her to make herself responsible. Such an agreement, however, need not be shown by direct evidence, but may be found upon evidence of surrounding circumstances, including acts after the service, indicating an acknowledgment of liability for the service.” And in Conlin v. Cantrell (supra) the court (per Hiller, J.) say: “ It is true the defendant did not agree specifically to charge her separate estate with the debt, but the surrounding circumstances are such as to lead to the inevitable inference that this was her intention.”

The judgment and order are reversed and a new trial is granted, costs to abide the event.

Hirsohberg, P. J., Woodward, Burr and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  