Jordan Marsh Co. v. Cohen, 242 Mass. 245

242 Mass. 245 | Mass. | 1922

Crosby, J.

The plaintiff brings this action to recover for certain furniture and household goods delivered to the defendant’s wife, at her request, and charged to him while he was living apart from her and their children.

The defendant and his wife were married in 1903 and lived together until June, 1919, when they separated; she and the children continued to live together. The goods were purchased by her on different dates in September, 1919, and after crediting to the defendant those that she returned there was a balance of $1,360.53 due and payable when this action was brought. The goods were purchased for use in the home where she and the children lived; the children were twin boys, sixteen years old, and a boy eight years old. There was no evidence to show that after the defendant and his wife separated he ever returned to her; she testified that after the separation he paid her $55 a week for the support of herself and children until October 1,1919, when the amount was increased to $75 a week. If the jury believed her testimony it could have been found that, when the goods were furnished by the plaintiff, some of the furniture in the house had been in use since their marriage, and that much of it was old, worn, and unfit for use. There was evidence that the defendant had $75,000 invested in his business, and $32,500 in cash, and also that he had some investments in mines. He testified that his income was approximately $10,000 and that “ he did a business of a quarter of a million dollars.” The case is before us on a report which contains all the evidence material to the questions of law involved.

It does not appear from the record whether the defendant abandoned his wife and children, or that the separation was by mutual consent without adequate provision for her maintenance. Mayhew v. Thayer, 8 Gray, 172. Hall v. Weir, 1 Allen, 261. The burden of proof is upon the plaintiff to show facts which establish the defendant’s liability. Eames v. Sweetser, 101 Mass. 78. The term “necessaries” in this connection is not confined to articles of food or clothing required to sustain life, but has a much broader meaning and includes such articles for use by a wife as are suitable to maintain her and the family according to the property and condition in life of her husband. Raynes v. Bennett, 114 Mass. 424, 429. Conant v. Burnham, 133 Mass. 503. Nearly all the articles so furnished by the plaintiff consisted of furniture and household goods and clearly fell within the class of necessaries.

Whether the defendant had made adequate provision for the support of his wife and children suitable to her station in life according to his means, and whether the household goods purchased by her from the plaintiff were reasonably necessary, were questions of fact for the jury to determine upon all the evidence. Raynes v. Bennett, supra. Willey v. Beach, 115 Mass. 559. Jordan Marsh Co. v. Hedtler, 238 Mass. 43, 46. Accordingly the defendant’s motion that a verdict be directed in his favor was denied rightly. The instructions of the presiding judge were adequate and accurate and fully covered all the issues involved. The requests for instructions, except so far as covered by the charge, were properly refused.

The defendant’s contention that the plaintiff is precluded from recovery on the ground that she agreed to accept a certain amount for her support and was not to pledge her husband’s credit, cannot be sustained; it is well settled that contracts between husband and wife are invalid in law. Silverman v. Silverman, 140 Mass. 560. Malden Hospital v. Murdock, 218 Mass. 73, 75, 76.

Cases which hold that where a petition for separate support has been filed by a wife in the Probate Court and the husband has been ordered to pay a certain sum to the wife periodically for her support, which order has been complied with, are not pertinent to the facts in the case at bar.

The refusal of the trial judge to take the case from the jury because the plaintiff’s counsel put the following question to a witness: “So far as you know, the trouble between Mr. and Mrs. Cohen is because of some woman? ” was not error. The question was not answered. If it had appeared that the defendant was living apart from his wife and children because of some other woman, it might have had a tendency to show that the separation was not due to any misconduct on the part of the wife and that he had abandoned her. Eames v. Sweetser, supra.

The defendant duly filed a bill of exceptions and presented it, as amended and assented to by both parties, to the presiding judge shortly before the expiration of the time for allowance; the judge omitted to act upon it until the expiration of the time limit therefor and the exceptions were dismissed under Rule 54 of the Superior Court (1915). Thereafter, at the request of the defendant, the judge reported the case to this court for the determination of the questions of law arising upon the exceptions.

The case is properly before us. There is no doubt that apart from rule the Superior Court had power to report the case without limit as to time. R. L. c. 173, § 105, as amended by St. 1917, c. 345 (see now G. L. c. 231, § 111). Strong v. Carver Cotton Gin Co. 202 Mass. 209, 212. Lee v. Blodget, 214 Mass. 374. Leland v. United Commercial Travellers of America, 233 Mass. 558, 560.

As we do not perceive any error in the conduct of the trial, the entry must be

Judgment for the plaintiff on the verdict.