*1 469 his consent. Diamond Match gave knowledge, had and to which he Co. v. Trust, 97; N. H. anno. 97 A. L. R. 780. plaintiff
The rested his case on a direct contract with defendant and the Court plaintiff awarded the a verdict requested amount on evidence which established such a contract. finding The Court’s purchases the defendant ratified agent his plaintiff change Yerder does not status plaintiff direct of a contractor materialman that of a subcontractor s. L., within R. c. 15. plaintiff was entitled recover as R. a materialman under Mfg. s. 12. Curtis Co. v. Company, &c. 98 N. H. 48.
Judgment on the verdict. All concurred.
Hillsborough,
No. 4267.
Grover C. Gove Wayne Adm’r n., & a. d. b. Crosby, Argued January 6, 1954. February 18,
Decided *2 plaintiff. for the orally), Willoughby Colby A. brief (by Wayne Crosby Booth, Wadleigh and Wyman, Starr, & (Mr. Langdell Wadleigh orally), for the defendant. plaintiff’s principal exception requires J. The a deter- Goodnow. given “living apart” be
mination to the words in “If, as used R. s. as follows: at the reads wife, time of the death either husband or decedent justifiably or surviving husband wife because such or guilty survivor was had been of conduct which constitutes divorce, guilty cause for such survivor shall not be entitled to portion interest or the real personal of said estate decedent, except given such as survivor will of the deceased.” *3 recognizing interpretation
In that it was confronted with words, holding of the Trial that of these Court ruled “the construc- Brown, aoanctonment in Brown v. N. H. tive construes and the abandonment of the relation of husband and wife not the living which as man they abandonment of the house in were and specifically wife.” While it was not ruled as a matter of law apart living that a wife could be found to be from husband living dwelling separate if she was in only occupied a from that apparent applied it that by him, seems this was the law in the later finding death, Court’s that “at the time of her Bertha M. from living apart the said Charles F. McNally required Chapter 359, as under sec. of the Revised Laws of Hampshire.” plaintiff excepted New The to limited this construc- the “living apart.” tion of words (see
By dictionary definition New Webster’s International Dictionary, ed.), “apart” 2nd the in the expression word when used apart” “living may separation, regards mean “a state of as . . . place,” generally accepted the more it but sense in which is used regards is to describe a action, condition of “isolation as function or associations” which might exist between a husband and while wife the occupying dwelling. same A wife husband and are usually of thought living together together as when they cohabit and participate with and other extent in the aid each to some ordinary acts and Their functions of home life. of the occupancy same dwelling relationship. is an essential Living apart element of the opposite is the living together of and exists the husband when wife aro each living and in from the independently isolation other. It separate is not however, that necessary, they occupy dwellings apart. living
in order to be No citation of is authority necessary support proposition relationship the that such a can exist they physically between a husband and wife even when are both in the dwelling. something Unless there is occupying the same require purpose or in that that language of the statute its would separate dwellings in order that one be they be occupying apart other, the living usual of the found be adopted. be term should require the statute does not that language merely
The of apart apart but decedent be parties living living that the survivor, indicating necessity voluntary for some thereby separation part of and intentional act of decedent. apart provide living in addition to simply Nor does it against divorce must have been a cause for in existence there also apart required living decedent to have been the survivor but the is existed, again indicating cause decision because such a some part required. operation decedent is on the result of the deprives surviving this is drastic. It a admittedly statute rights all those estate of deceased husband wife long important as incidents spouse recognized which have interdependent in contract but the definition of two marriage death, must exist at the time of conditions which survivor’s protected. in where both rights adequately Particularly cases proof dwelling, the same that the decedent occupying were made difficult because of the norm- extremely *4 relationship the that private nature of exists between husband ally emphasized. are wife, protection rights this Those barred and is against surviving spouse if divorce the “a cause of has only Baker If Baker, 307, matured.” 90 N. H. previously apart” existed, interpretation “living a an of the cause words decedent, require living, that the while remove in this statute to dwelling expense the at separate a would favor offender the to injured It the matter spouse. permit survivor, would no how of the may been, successfully her conduct have to outrageous his or if property latter, the without rights retain all decedent’s doing so, occupying reasons was the same regard to for at time of death. do not believe dwelling with the survivor the We finding intended. A that the decedent was that this result was apart precluded fact that he by from the survivor is not if all occupying dwelling the same or she was with survivor had associations and connections with the survivor the ordinary leading by been the latter was terminated decedent and independent Trial that Mrs. McNally existence. The Court found 1945, and to justifiably 24, began left her home on November live guilty from her had been extreme husband because he upon to her. The evidence in the case is such that a cruelty new living apart may trial it found that this condition of continued plaintiff’s after her return her and until her death. The to home exception is there be a trial. sustained and must new exceptions finding concern the that defendant’s Court’s McNally guilty Mr. had conduct which constitutes cause for He first contends no divorce. that there was evidence that beating by which was received Mrs. on McNally November by face, body, as evidenced marks her arms and by inflicted her husband. While it is that there true was no evidence, finding direct the Trial that Court’s to effect support upheld. without in the evidence and must be There was evidence that McNally disagreeable Mr. had become very years death, last before his wife’s that he drank considerably and McNally that Mrs. frightened had been observed in a state of mind on more than occasion within year one before date of her eight morning death. About o’clock in the on the day in question, neighbor’s Mrs. house, appeared went to a McNally have injuries suffered immediately that, before “all torn to pieces,” scared, up keep worked and could hardly crying. The neighbor observed the marks and bruises on her and face arms and these were also seen others by within next several days. Mrs. did not return her home but was taken her by neighbor to the home of a relative and thereafter remained away for During period three weeks. brought an she action for against divorce her findings husband. The Court’s are amply supported by stranger this evidence. The fact that some have assaulted her or that Mrs. have McNally may fallen and so injured herself, urged the defendant, as by possibilities mere totally inconsistent remaining with actions in away from occupied home starting her husband and a divorce action against him. The defendant also asserts even if adminis- *5 tered her by husband, there is no evidence but that the beating Mrs. McNally provoked. received was merited Considering severity injuries she received, as evidenced by photographs, the fact that opinion witnesses, several she had a good disposition, and the total absence of evidence to indicate
474 upon her, the obsolete provoke did merit or assault
she husband and wife in and duties of applied to conduct standards in- defendant, are 307, relied Poor, by Poor v. 8 N. H. husband’s finally suggests defendant applicable here. The was an by his wife. Condonation offense, any, if condoned Szulc, v. the defendant. Szulc affirmative defense available Cf. evidence that Mrs. of conclusive N. H. 190. In the absence her, husband for mistreatment forgave later his do so not error. implied finding that she did not the Court’s exceptions overruled. The defendant’s
New trial. J., dissented: concurred. the others Duncan, appears dissenting: phrase “living apart” Since the J., Duncan, had the same 33, chapter 339, Laws, Revised in section 359, I im- chapter Laws, Revised think it origin 19, as section in the sense intended be used probable that the words were Trow, v. (Cf. Trow opinion them by majority attributed to distinguish 1, 2), ss. which would 529, 530; N. H. refusal to cohabit language of abandonment and them from IX) (R. already of which had L., c. s. 6 H. Brown, Brown v. 78 N. 337. established Rockingham, 4273.
No. Perry Thomas W. Faulkner.
Laura A. January 6, 1954. Submitted February 18, Decided