
    Daniel H. Zimmer, App'lt, v. David Settle et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    1. Husband and wife—Agreement to live separatelx—Liability of SURETIES UPON BOND GIVEN UPON.
    Plaintiff and his wife having agreed to separate, he paid defendants §400, and they gave him a bond that they would support, maintain and clothe her during life, and pay her funeral expenses after death In three months she returned to her husband’s house, and this action was commenced four months after for clothing and support afforded by him. Held, that the return of the wife to the husband’s house was one of the contingencies not provided for by the terms of the contract between the parties, and not subject to the control of either, and put an end to the contract, and plaintiff cannot maintain an action thereon.
    2. Same.
    The husband while living with his wife may be treated by third persons as assuming the rights, duties and liabilities incident to the marital relation, and to a reasonable extent her authority to use his credit may be presumed in behalf of those not advised to the contrary.
    Appeal from judgment, of the general term of the supremo court, in the fourth judicial department, affirming judgment entered on a verdict in favor of the defendants.
    The action was brought upon abond made by the defendants to the plaintiff, of date of April 7,1879, reciting that differences had arisen between Annie M. Zimmer and Daniel H. Zimmer, her husband; that she had brought an action against him for a limited divorce and for her support; that the parties had agreed upon a settlement of it, and that Zimmer had paid to the defendants $400; and containing the condition that if defendants “ do well and truly properly support, maintain, clothe, board, furnish with all the necessaries of life in sickness and health, and tenderly care for the said Annie M. Zimmer during the term of her natural life, and in sickness furnish her proper medical attendance, and in every way render her all such assistance and support as her husband might be under obligations to do, and forever save the said Daniel H. Zimmer entirely harmless and exempt from any further support of the said Annie M. Zimmer, or from annoyance, suits, costs or claims on account of the said Annie M. Zimmer during the term of her natural life, and shall pay her necessary and proper funeral expenses after death,” and if the defendants, or either of them, shall faithfully perform all such stipulations, the obligation to be void, else to remain in force.
    The defendant David Settle is the father, and the other defendants the brothers of Annie M. Zimmer. In October, 1878, she left her husband and went to her father’s house, where she remained at the time the bond was executed, in April, 1879, and on July 23, 1879, she returned to the house of her husband and was living there at the time this action was commenced in November following. The breach alleged is that the defendants had failed and refused to save the plaintiff harmless from claims and suits on' account of his wife and to take care of her. etc., and that in consequence of such default the plaintiff has been compelled to pay certain claims and to provide for and support her. It appeared that after the return of the wife to the plaintiff’s house she obtained some clothing for herself upon his credit, for which he was required to and did pay, and that he supported her. A verdict was directed for the defendants.
    
      C. A. Clark, for app’lt; Alex Cumming, for resp’ts.
    
      
       Affirming 42 Hun, 658, mem.
      
    
   Bradley, J.

The bond when made and delivered became a valid obligation of the defendants, and their defense is dependent upon the circumstances and effect of the return of the wife to her husband’s house and home and her continuance there. The evidence did not justify the inference of any breach of the condition of the bond white the wife remained with them and before her return to the plaintiff in July, 1879. By the terms of that instrument the duty assumed by the defendants to provide for the wife and take care of her is not qualified by any circumstances or made subject to any conditions expressed in it. But it may be observed that at the time the contract was entered into she had left her husband and been absent from him six months, and there was then pending her action against him for a separation and alimony, which could be supported only on the ground of ill treatment of her by her husband of a serious character. It evidently was then contemplated by the plaintiff and the defendants that the wife would not return to her husband but would continue to live separated from him, and it was in view of such separation the bond was made and taken.

This is 'also indicated by the recital in it that differences had arisen between the husband and wife, and that she had commenced an action against him for a limited divorce and for her support. It may be assumed that the contract resulting in the giving and accepting the bond was entered into in reference to such situation, which is entitled to consideration in the determination of the purpose and effect of the instrument This does not require any modification of its provisions, but has relation to the application of the language used to the subject within the contemplation of the parties as represented by the situation then existing and the surrounding circumstances, which it. may be assumed they then had in view. Griffiths v. Hardenberrgh, 41 N.Y., 464; Blossomy. Griffin, 13 id., 569; Juilliard v. Chaffee, 92 id., 529.

The occasion which ted to this contract and obligation between the parties was the separation of the wife from her husband, and such was the sole cause for entering into it. It cannot be assumed that there was any purpose to, in that manner, make provision for her care and support as a member of the plaintiff’s family. Such an obligation for that purpose evidently was not in the mind of the parties. Nor was it contemplated that she would return to -and live with the plaintiff, but, on the contrary, it was understood that the situation then existing in that respect would continue, and in that view the parties acted in contracting for and making the obligation. Any other view seems to be contrary to their apparent purpose and repugnant to reason. The primary duty to take care of and support a wife is with the husband, and it cannot be supposed, unless the circumstances clearly require such conclusion, that he intends while she is living with him to deny himself that right, relieve himself from all responsibility in that respect, and-to devolve the performance of that duty wholly upon another. In the present case the existing separation upon which the contract was founded justified it at the time it was made. But when the wife returned to the house of her husband to live and lived with him there, resuming permanently her membership of his family as his wife, the cause which led to the contract ceased to exist, and the considerations upon which it rested disappeared. Articles of separation between husband and wife in which another joins with her as trustee, although valid when made, are rendered void by resumption by them of their conjugal relation. Shelthar v. Gregory, 2 Wend., 422; Carson v. Murray, 3 Paige, 483.

It is, however, urged that there was in this instance no reconciliation in the sense requisite to annul articles of separation; that at all events the court could not properly hold, as matter of law, that it was so, because there was evidence tending to prove that the husband did not consent to her return, and did not receive and fully cohabit with her as his wife. While there is evidence to that effect, it appears that his relations of cohabitancy- with her were substantially the same as they were for considerable time before she left his house. There were no articles of separation in this instance, nor had the wife entered into any agreement to that effect with her husband. She was, therefore, without the fault of the husband or of the defendants, at liberty to seek to make her husband’s home hers. The defendants had no right or lawful power to prevent her doing so. And any undertaking on their part to prevent the restoration of conjugal rights or relations of the husband and wife would have been void as against public policy. ■ They, therefore, had no right against her consent to take her away from the plaintiff’s house. Her purpose evidently was to remain there, and he permitted her to do so. It is difficult to see how he could properly do otherwise. This view is as favorable to the contention of the plaintiff in that respect as can be taken. As between her and the plaintiff it was the right of the wife to return to her husband’s house and insist that it was her home, and it was his duty to provide for her there unless by her conduct she had forfeited that right. This is not claimed. She was not required to respect any arrangement made between her husband and another party for her provision and care elsewhere. This was one of the contingencies which was not only not provided for by the terms of the contract between the parties, but was not subject to the control of either. And when the resumption of her home with the plaintiff could be considered permanent, a situation was produced not provided for by the contract or within its contemplation when it was made. The situation was such that the plaintiff could realize no benefit from the undertaking assumed by defendants, and they were not required to attempt to induce her to leave her husband and go to their house to receive support, nor would they have been justified in seeking to do so without the consent of the husband.

The consequence was that the contract as represented by the condition of the bond, ceased to be effectually operative for the purposes of the burden or benefit of its performance for reasons resulting from the default of neither, produced by a cause over which none of the parties to it had any control which they could legally exercise. And that situation when accomplished put an end to the contract and the obligation made pursuant to it and the plaintiff was entitled to reimbursement of the consideration paid by him. Hildreth v. Buell, 18 Barb., 107; Jones v. Judd, 4 N. Y., 412. The defendants after the return of the wife to her husband to remain there took that view of the matter, and through a third person proposed to the plaintiff to repay to him the $400, and by their answer alleged their readiness to do so. The further performance by the defendants of their obligation within its meaning and purpose required a separation of the wife from the husband and her removal from his home. This could not effectually be made the subject of contract between these parties, and it would be no less unlawful for them to execute such a purpose without her consent It would be repugnant to the policy of the law pertaining to the marital relations, rights and duties of husband and wife. And it was through the exercise of her right that the wife sought and obtained the home of her husband and children and his care and support Thus the purpose of the defendants’ bond was defeated.

It is, however, contended on the part of the plaintiff that the duty of the defendants to care for and support the wife and indemnify the plaintiff from expenses and liability in that behalf, was no less after her return to her husband than while she was living separate from him unless their reconciliation was as between themselves complete so that they fully resumed their conjugal relations. This proposition is in disregard of the apparent relation and other considerations arising from it. It is, however, not entirely clear what is essential to reconciliation in its application to the present case if it did not exist between the plaintiff and his wife. It does not depend upon any particular degree of reciprocal affection or esteem. As between persons in such relation, it may arise from appreciation and observance by them of their marital duty to each other. The husband and wife in this instance not only resided in the same house, and had done so for nearly six years at the time of the trial, but they during that time with their children ate at the same table, they were friendly and kind to each other, with no apparent difference in that respect, occupied separate sleeping rooms as thejr had for two years before. The wife was partially blind and in no condition to do house work, and the evidence tends to prove.that she took no charge of it. It would be a step in advance, without support of. sound policy, to hold that as between the husband and third persons the rights of the latter could not rest upon his apparent..relations.with.his wife while they are living together.

Th@ husband, while .living"with. his. .wife, may be treated by third persons as assuming the'rights,' duties and liabilities incident to the marital relation, and to a reasonable,extent her authority to use Tais credit may be presumed in behalf of those not advised to the contrary. Emmett v. Norton, 8 Carr. & P., 506; Keller v. Phillips, 39 N. Y., 351. And this is not confined to actual necessaries for herself, as is the case when the wife is justifiably living apart from him. The credit of the husband used by the wife under such circumstances might create, as against him, greater liabilities than those with which the defendants would be chargeable upon their undertaking. This is only one reason why the apparent relation between the plaintiff and his wife was not consistent with the performance of their covenant They were not advised by the plaintiff or otherwise that it was other than it appeared to be by the fact that the plaintiff and his wife were living together, and for the purpose of the question here their apparent, in view of its uninterrupted continuance, must be deemed their actual relation. The situation is different from what it would have been if the wife had left the defendants’ house and went to a place other than the house of her husband to live. Then a question would have arisen which requires no consideration here. She, in that case, would have resumed no relation-to the plaintiff which would have cast upon him, as between him and the defendants, any duty, apparent or real, to relieve them from the obligation they had assumed as he did not undertake that'she should remain at the house of the defendants.

The view taken renders it unnecessary to consider the consequences of breach by the defendants of their obligation in respect to the rule of damages, and whether they be partial and limited to such as were sustained prior to the commencement of the action, or also prospective and final.

The most that can be claimed by the plaintiff in support of his motion to amend his complaint by inserting allegations with a view to a recovery of the consideration paid to them is that the ruling of the court upon it was discretionary. The disposition of the motion is not, therefore, the subject of consideration on this review. And as the action, as represented by the cause alleged in the complaint, did not proceed with that view, the question whether the plaintiff was entitled to reimbursement from the defendants of the amount paid to them as the consideration of their obligation or any portion of it, did not arise for determination upon the trial.

These views lead to the conclusion that none of the exceptions were well taken.

The judgment should be affirmed.

All concur, except Potter and Vann, JJ., not voting, and Pollett, Ch. J., not sitting.  