25 Ill. 503 | Ill. | 1861
The law has imposed the duty upon the husband of furnishing the wife with all articles necessary and suitable to his degree and condition in life. If he disregards this duty, the wife may procure them of whom she pleases, and the husband will be liable. Whilst this is true, the husband has the right to furnish them in the mode, and from whom he may choose. And when he has furnished them, other persons can have no such right. Their right to do so can only arise when the husband has failed in the performance of this duty. And when he has discharged this duty he may escape all liability for the wife’s contracts, unless it be shown that she has been accustomed to make such contracts, and he has recognized them as binding; as the law would then imply that she was acting as his agent, to revoke which, he should give notice that he would not hold himself bound by her agreements.
As the law imposes the duty upon the husband to furnish his wife with all necessaries suitable to his position in society and his means, during coverture, it follows that if the wife, without any or for insufficient cause, deserts her husband, and, contrary to his wish, lives separate and apart from him, that he will not be liable for her contracts for necessaries. It is only during cohabitation, or when the husband has expelled the wife from his house, or by bad treatment has compelled her to leave, or where it is by consent that they are living separate, that the husband is held liable. If the wife, without sufficient cause, deserts her husband, he is not liable, and it is for all persons knowing that the parties live separate, to know whether the wife, had cause to desert her husband. The questions as to whether goods furnished the wife were suitable to the husband’s position and means, and whether she was justified in deserting her husband, are those of fact, and are for the jury to determine from all of the evidence on the trial. In this case the wife had separated from the husband, and whether she was justified in doing so, was for the jury to determine from the evidence. The wife is not warranted in doing so for slight and trivial causes, but to be justified, the causes must be grave and weighty. Extreme harshness and great austerity of manner and treatment, a want of care in providing for the wife and his family in a reasonable manner, as also, indignities to the wife, may all be considered by the jury in determining whether there was a justification for the separation.
If the husband deserts his wife, turns her away without reasonable grounds, or compels her by ill usage to leave him, he is liable in the same manner and to the same extent as if cohabitation continued. In such a case he cannot escape liability by giving notice not to trust her, unless he has supplied her with suitable necessaries. Where goods are supplied to a woman living separate from her husband, it devolves upon the person giving the credit to show~that the husband is liable, the presumption being that he is not, unless she is deserted by the husband. According to’these principles, the third and fourth of appellant’s instructions should have been given, as they assert the rule here indicated. If there was an act of bad treatment perpetrated that would justify a separation, and the party who was subjected to it remains afterwards for the length of time indicated in the fifth instruction, the presumption would be that it had been forgiven; but if the same or some other bad treatment was inflicted, it would revive the original offense, because, when the party continues the cohabitation, it is presumed to be on the condition that the other party will discharge all of the duties of the relation. This instruction, in substance, asserts this principle, and should have been given. It would have been the province of the jury to determine, from the evidence, whether there had been a repetition of bad conduct, such as was indicated in the previous instructions. The first instruction may not be altogether accurate as given, and not sufficiently explicit as to the authority to purchase, and was in that respect calculated to mislead the jury; and the qualification was defective in not informing the jury what would be just cause of desertion, or what would be improper treatment.
The judgment of the court below must be reversed, and the cause remanded.
Judgment reversed.