
    William T. East v. Ann A. King.
    1. Husband and Wife. Parent and child. Liability of husband and father. Maintenance of tvife and child.
    
    A husband and father is bound to support his wife and infant children, and if he leaves them without means of subsistence, he is liable to the wife’s mother who furnishes them.
    
      2. Same. Wife driven away.
    
    If a husband drives his wife away from his home, or so conducts himself towards her as to entitle her to a' divorce from bed and board, he will be liable for her'maintenance and the maintenance of his infant children in her custody.
    FROM tbe circuit court of Lincoln county.
    LToN. Bobebt Pómpele, Judge.
    Mrs. King, tbe appellee, .was tbe plaintiff in tbe court below; East, tbe appellant, was defendant there. From a judgment in favor of tbe plaintiff tbe defendant appealed to tbe supreme court. The opinion states tbe facts.
    
      Gassedy & Gassedy, for appellant.
    Tbe appellant never made a contract, express or implied, with tbe appellee for board for bis wife and children. Tbe claim is based upon tbe idea that a father is liable under all circumstances for necessaries furnished bis children, there being an implied promise on bis part to pay therefor, supposedly arising from moral duty. But the law of nature designates tbe father’s bouse as tbe place where tbe duty of support shall be performed. Ghilcott v. Tremble, 13 Barb., 502.
    It is presumed, in tbe absence of proof, and there was no proof in this case to the contrary, that tbe service rendered by Mrs. King to her .daughter and grandchildren was voluntary and without expectation of reward. Eitel v.- Walter, 2 Brad., 287; Ghilcott v. Tremble, 13 Barb., 502; Young v. Heater, 63 Iowa, 668.
    Tbe agency of tbe wife to bind her husband is sometimes presumed from cohabitation and from tbe fact that tbe necessaries were consumed in bis family. There must be some circumstance calculated to lead a reasonable person to believe that her acts, to bind him, are done with bis consent and presumably by bis direction. Ogden v. Prentice, 33 Barbour, 164. There was no cohabitation in this case, but, on tbe contrary, a separation, known to tlie appellee, and lienee she supported her own daughter a.nd grandchildren, it is to be presumed, without hope of reward, but because of her moral duty to provide for her offspring.
    
      A. 0. McNair, for the appellee.
    It is a principle of law growing out of the marital relation, as a consequence of the obligation assumed by the husband upon marriage, that he shall supply the wife with all necessaries convenient and suitable to their station in life. If he neglects to provide the necessaries, the wife may make the purchases, and, though he may dissent, he shall, nevertheless, be liable therefor, and he impliedly makes her his agent to procure them for herself. Ether ton v. Parrott, 1 Salk., 118; Story on Contracts, see. 98; Dunbar v. Meyer, 43 Miss., 679; 9 Am. & Eng. Ene. L., 830.
    The obligation of the father to maintain and support his children is, and always has been, recognized in some way and in some degree in all civilized countries. The infant cannot support himself; others, therefore, must supply him with the means of subsistence, and the question is whether the state or the father shall do this. Justice, equally with the best affections of our nature and the dictates of the human heart, answer that it is the duty of a father to administer to the wants and needs of his helpless offspring. 1 Parsons on Contracts, 298; Stanton v. Wilson, 3 Bay, 37'; Van'ValJcinburg v. Watson, 13 Johns., 480; Pedgin v. Gram, 8 N. II., 350; Reynolds v. Sweeter, Í5 Gray, 78; FowTIces v. Balcer, 29 Tex., 135; Swam v. Tyler, 26 Vt., 9; Deane v. Annis, 14 Me., 26; Ciarle v. GlarTc, 46 Conn., 586; Thompson v. Dorsey, 4 Md. Chy., 144; McMillan v. Lee,-IS TIL, 443; McGoon v. Irving, 44 Am. Dec., 409; Porter v. Powell, 18 Am. St. Pep., 353; Miller v. Watson, 2 Am. St. Pep., 48; Gilley v. Gilley, 1 Am. St. Pep., 307; 5'Wait’s Actions & Defenses, 50.
   TtsReal,. J.,

delivered the opinion of tbe court.

Mrs. King sued East for $195 for the board and lodging of his wife and three small children for thirteen months, and had judgment for said sum. The evidence showed that East directed his wife to leave his home, which she did, and found refuge with Mrs. King, her mother. East filed his bill for a divorce, but failed to obtain a decree; the children, however, were awarded to the custody of Mrs. East. There was evidence on the trial that Mrs. King had furnished board and lodging to Mrs. East and her three children for the time specified in the account, and that the charge made was reasonable. “A husband is bound to support his wife, and if he leaves her without the' means of subsistence she becomes ‘an agent of necessity to supply her wants upon his credit.’ This right arises where the husband has driven the wife away, or where she has left him in consequence of ill treatment and reasonable and well grounded apprehension of further violence, or because her husband has rendered his home an unfit place for her to live, as by introducing women of profligate habits, or in consequence of the commission by him of such acts as would entitle her to a divorce from bed and board.” Tiffany’s Personal & Domestic Delations; Hamilton v. Smyth, 11 E. C. L. R., 64; 3 Bing., 127; Bozeley v. Forder, L. R., Q. B., vol. 3, p. 559; 3 Kent, 146, note x1.

The judgment of the circuit court must he affirmed.  