26 Mo. 598 | Mo. | 1858
delivered the opinion of the court.
The plaintiff sued the defendant for boarding his wife and for necessaries furnished to her during a temporary separation from her husband. The defendant had a dwelling-house at the time his wife left him, and the plaintiff kn.ew, when she came to his house, that she had separated from her husband. It can not be inferred from the evidence whether the separation -was by the mutual consent of the husband and wife or was brought about by any fault of the husband, and the bare question is presented whether the husband is liable for necessaries furnished to his wife during their separation without any explanation of the circumstances that led to it.
The law presumes the husband’s assent to contracts made by the wife for necessaries suitable to his degree and estate from the fact of cohabitation; (Rutherford v. Cox, 11 Mo. 852;) but when that ceases the tradesman is bound at his peril to take notice of the separation, (Porter v. Bobb, 25 Mo. 36,) and he can not recover of the husband for any supplies furnished to the wife xxnless the separation was on accoxxnt of the misconduct of the husband, _ or was by the mutual consent of the husband and wife without any ad-eqxxate allowance for her support; (2 Smith’s Lead. Cases, 374;) and if the wife leaves her husband without cause, he will not become liable by receiving her back for necessaries sxxpplied to her during her unlawful absence. (Williams v. Pierce, 3 Strob. 490.)
The first, third and fourth instrxictions were properly re-fxised becaxxse they did not contain correct propositions of law, and the second and sixth were refused becaxxse they were not wai-ranted by the evidence. The judgment will be affinned ;
