delivered the opinion of the Court.
This suit was brought to recover the amount of a bill of goods furnished to the wife of the defendant, whilst she lived separate and apart from her husband. It appeared that the. goods were of a similar character to such as had been furnished Mrs. Coxe previous to her separation, and for which Mr. Coxe had paid without objection. There was evidence to show that Mrs. Coxe had left her husband without cause, and that the separation was notorious through'St. Louis. Propositions for a compromise or amicable separation and division of' property had passed, but had not resulted in any definite arrangement. Mrs. Coxe sued for a divorce, but did not succeed. Upon that trial, Mr. Coxe had given in evidence bills contracted by his wife to the amount of $1,100, or thereabouts, and among these was the one now sued for. The only question is, whether, upon the facts just stated, the plaintiff was entitled to recover. The Court of Common Pleas held that, if the jury found the facts to be as stated, the plaintiff could not recover, and in this opinion we concur.
The liability of the husband for necessaries furnished the wife, is based upon the fact of cohabitation. When that ceases, the tradesman deals with the wife at his peril. If the separation is involuntary on the part of the wife, or brought about by tbe misconduct of the husband, the latter is clearly liable; but if the wife leaves the husband without just cause, he is not liable. This doctrine is briefly and forcibly expressed by Mr. Justice Platt, in McCutchen vs. McGahay, (11 J. R., 282.)— “The duties of the wife, while cohabiting with the husband, form the
The instructions of the Court of Common Pleas are understood to assert the same principle, leaving the jury to find the facts. There was certainly ample evidence to satisfy a jury that the plaintiff knew of the separation of the defendant and his wife. The general notoriety of the occurrence throughout the city — the plaintiff’s letter to Mr. Coxe, written after the separation, and the direction of Mrs. Coxe to send the goods to the residence of her brother-in-lau', were sufficient circumstances to warrant the inference that the plaintiff was fully aware of the relations of the parties. Nor was there any satisfactory evidence that Mr. Coxe assented to the separation unconditionally. There was no proof that Mrs. Coxe ever offered to return to her husband, and the propositions made by Mr. Coxe for an amicable separation were merely by way of compromise, and would not change his liabilities, unless they bad been acceded to by Mrs. Coxe.
We do not see bow the conduct of the divorce suit between Mr. and Mrs. Coxe, either by Mr. Coxe or his counsel, bad much tendency to explain bis legal liability to the plaintiff in this suit. It seemed that upon this trial, the account of the plaintiff, among others, was produced for some purpose. Perhaps Mr. Coxe at that time considered himself liable to pay the account, or, whether liable of not, be may have determined to pay it. This determination, however, unless communicated to the plaintiff, does not change his legal liabilities. If liable at all, he was liable when the bills were contracted, or by some subsequent assumption to pay them. Could the introduction of these bills in evidence in a trial between him and his wife have the force of an assumpsit to the plaintiff? The evidence, at all events, was permitted by the court to go to the jury, and it was for them to draw such inferences from it and the other concomitant facts as they thought proper.
Upon the whole, we think the instructions given contained the law applicable to the case, and the verdict of the jury amply sustained by the evidence.
Judgment affirmed.