Sec 82

The contracts executed by a married woman before her marriage, bind, at common law, her husband, and enure to his benefit, should he execute them and reduce their proceeds into his possession. If, however, this reduction does not take place, they survive to her, after his death.1 A new contract, or novation, or merger by judgment, is a reduction into possession. It is otherwise, however, as to receipt of interest, or joining with the wife in receipt of principal.2

Mere separation from husband does not create independent liability.

1 Pollock on Cont. 3d ed. 83 ; see Schouler, Husb. and Wife, sec 558 et seti.

2 Whart. Con. of Laws, sec 216 et seq. Wells v. Malbon, 31 Beav. 48 ; Wilkinson v. Gibson, L. R. 4 Eq. 162. As to effect of divorce on marriage settlement, see Fitzgerald v. Chapman, L. R. 1 Ch. D. 563; Burton v. Sturgeon, L. R. 2 Ch. D. 318. But divorce has no retroactive effect in making actionable claims not actionable during coverture in which period they arose. Phillips v. Barnett, L. R. 1 Q. B. D. 436, and see Wells v. Malbon, 31 Beav. 48 ; Fitzgerald v. Chapman, L. R. 1 Ch. D. 563.

3 Tyler on Infancy, etc. 2d ed. sec 354; Schouler, Husb. and Wife, sec 559 ; see.

Wait 9. Wait, 28 Vt. 550; Hunt v. Thompson, 62 Mo. 148.

4 Pierce v. Burnham, 4 Met. (Mass.) 303 ; Dean v. Richmond, 5 Pick. 461; Benadum v. Pratt, 1 Oh. St. 403; though see Burr v. Burr, 10 Paige, 166 ; Clark p. Clark, 6 W. & S. 85.

5 Marshall v. Rutton, 8 T. R. 545.

6 Clayton v. Adams, 6 T. R. 605 ; Hayward v. Barker, 52 Vt. 429 ; Concord Bank v. Bellis, 10 Cush. 276; Keen v. Coleman, 39 Penn. St. 299.

7 Wh. Con. of Laws, sec 224 ; Rhea v. Renner, 1 Pet. 105 ; Ayer v. Warren, 47 Me. 230; Abbot v. Bayley, 6 Pick. 89 ; Gregory v. Pierce, 4 Mete. Mass. 31, 478 ; Ames v. Chew, 5 Mete. Mass. 320; Rosenthal v. Mayhugh, 33 Oh. St. 155 ; Blumenberg p. Adams, 49 Cal. 308. See supra, sec 76.

Sec 83

A husband is liable for his wife's torts,3 though it is otherwise as to torts based on contracts, and deceits, and false pretences.4 Suits for redress for injuries of this class, committed by a married woman, cannot be brought against her husband.5 And where a wife is sui juris, her husband is not liable for her torts in matters as to which she acts independently.6

Sec 84

A married woman, though incompetent to contract on her own account, may bind her husband by contracts made by her for ordinary household expenses. The family relation, as shaped by society, places in the wife's hands the management of household affairs.7 But the agency is limited to household matters, unless otherwise implied from the prior procedure of the parties;8 though whatever is necessary for the support of the family, Her contracts before marriage pass to her husband.

Husband liable for her torts.

Wife may bind husband as agent.

1 1 Parsons on Cont. p. 341; Morris v. Norfolk, 1 Taunt. 212; Co. Lit. 351, b. c. ; Dodgson v. Bell, 5 Exch. 967.

2 1 Parsons on Cont. p. 342; Hart v. Stephens, 6 Q. B. 937; Morse v. Earl, 13 Wend. 271; Timbers v. Katz, 6 W. & S. 290. As to novation see infra, sec 852 et seq.

3 Hawk v. Harman, 5 Binn. 43.

4 Tyler on Inf. etc. 2d ed. sec 233.

5 Liverpool Assoc, v. Fairhurst, 9 Exch'. 422 ; Keen 0. Hartman, 48 Penn. St. 497.

6 Hill v. Duncan, 110 Mass. 238; Peake v. Leman, 1 Lans. 295 ; Baum v. Mullen, 47 N. Y. 577 ; Fiske v. Bailey, 51 N. Y. 150; Burt v. McBain, 29 Mich. 260; though see Fowler v. Chichester, 26 Oh. St. 9.

7 Emerson v. Blonden, 1 Esp. 142; Meredith v. Footner, 11 M. & W. 202;.

Pickering v. Pickering, 6 N. H. 124 ; Felker v. Emerson, 16 Vt. 653 ; Mac-kinley v. McGregor, 3 Whart. 369; Murphy v. Hubert, 16 Penn. St. 50. In Seaton v. Benedict (5 Bing. 28 ; 2 Sim. L. C, 7th Eng. ed. 475), Best, C. J., says : " A husband is only liable for debts contracted by his wife on the assumption that she acts as his agent. If he omits to furnish her with necessaries, he makes her impliedly his agent to purchase them."

8 Cobbett v. Hudson, 15 Q. B. 988 ; Lane v. McKeen, 15 Me. 304; Green v. Sperry, 16 Vt. 390; Benjamin v. Benjamin, 15 Conn. 347; Debraham v. Walker, 3 Weekly Notes, 26. See as to inferring agency in drawing negotiable paper, Barlow v. Bishop, 1 East, 432 ; Lindus v Bradwell, 5 C. B. 582; Mi-nard v. Mead, 7 Wend. 68; Leeds v. 111 keeping its social condition in view, may be furnished on this basis,1 the employment of servants being included in this category.2 The principle is not affected by the statutes giving independent status to married women.3 The tradesman is not bound to inquire as to the husband's circumstances or the wife's necessities.4 Independently of this implied agency, she may bind her husband by doing business on his behalf with his authority, and when it appears that such an agency was assented to by the husband (and for this purpose proof of acquiescence is enough), there is nothing, at common law, which precludes her from binding her husband.5 That her husband lives with her when she is carrying on trade, and joins with her in enjoying the profits, constitutes him principal in the trade, liable for her acts.6 But unless there be.

Vail, 15 Penn. St. 185. See Schouler, Husb. and Wife, sec 100 et seq.

1 Breinig v. Meitzler, 23 Penn. St. 156 ; infra, sec 92.

2 Powers v. Russell, 26 Mich. 179.

3 Weir v. Groat, 4 Hun, 193; Flynn v. Messenger, Min. Sup. Ct. 9 N. W. Rep. 759, where it is said : "The principle laid down in Powers v. Russell, 26 Mich. 179, in the following language : ' Now, if he (the tradesman) knew that she was a married woman, living with her husband, and the goods were not of a character to indicate that they were bought for other than family use in the husband's family, and she did not claim affirmatively to be purchasing them on her individual account, the natural inference would be that she was purchasing them on her husband's account, and for the use of his family; and she could not be made individually liable without an express agreement to become so, or that the goods should be charged or the credit given to herself.'" "If it was intended to make so impontant a change in the law and the usages of society, it is to be presumed that the legislature would have declared it in express terms, and not left it to be brought about by implication from other provisions not directed to the rules of evidence connected with the marital relation, or the presumption of the common law arising therefrom. These principles apply with equal force to the employment by the wife of servants for ordinary domestic service in and for the benefit of the husband's family, and dispose of this case." "We also think it is to be assumed, prima facie at least, in the absence of anything in the proceedings or proofs to the contrary, on grounds of common knowledge, that the service performed by the plaintiff was an ordinary domestic service, such as the wife might reasonably employ for the benefit of the family.".

4 Eames v. Sweetser, 101 Mass. 78. See infra, sec 92.

5 Wh. on Agency, sec 15 ; Church v. Landas, 10 Wend. 79.

6 Clifford v. Burton, 1 Bing. 199 ; Mac-kinley v. McGregor, 3 Whart. 369 ; Abbott v. Mackinley, 2 Miles, 220. So far as concerns her purchase of goods for household use is concerned, his knowledge of her purchase, without such agency, express or implied, shown, the husband is not bound either by his wife's independent business engagements, or by her purchases of articles not necessary for the support of the household in accordance with the station of the parties.1 And should it appear that the wife has a separate income, and that articles in the same line supplied to her (not for joint household use) were previously charged to her separate account by the same tradesman, this will preclude his recovery from the husband.2-It is now settled in England that a husband who is able and willing to supply his wife with necessaries, and has forbidden her to pledge his credit, is not liable, though living with his wife, for necessaries furnished the wife by a tradesman ignorant of the husband's prohibition.3 So far as concerns articles not of immediate necessity, protesting, is an acquiescence. 1 Parsons on Cont. 348, citing Waithman v. Wakefield, 1 Camp. 120.

1 Reneaux v. Teakle, 8 Exch. 680; Montague v. Benedict, 3 B. & C. 637 ; Phillipson v. Hayter, L. R. 6 C. P. 38; Jolly v. Rees, 15 C. B. N. S. 628.

2 Bentley v. Griffin, 5 Taunt. 356; Shelden v. Pendleton, 18 Conn. 417.

3 Debenham v. Mellon, L. R. 5 Q. B. D. 394; 42 L. T. (N. S.) 577 ; aff. in House of Lords, 43 L. T. (N. S.) 673; L. R. 6 Ap. Ca. 24. In the House of Lords, Lord Blackburn said : "I think that if the husband and wife are living together, that is a presumption of fact from which the. jury may infer that the husband really did give his wife such authority. But even then, I do not think the authority would arise so long as he supplied her with the means of procuring the articles otherwise. But that is not the present question, which is this: Had the wife a mandate-to order the clothes which it would be proper for her in her station in life to have, though the husband had forbidden her to pledge his credit, and had given her money to buy clothes ? I think, for the reasons given, by the majority of the court in Jolly v. Rees, ubi supra, and also by the judges in the court of appeal in this case, that there is no authority and no principle for saying that the wife had authority to pledge her husband's credit. I quite agree that if the husband knew that the wife had got credit, if he had allowed the tradesmen to suppose that he himself had sanctioned the transactions, by paying them; or in other ways, it might very well be argued that he would have given such evidence of authority that if he did revoke it, he would be bound to give notice of the revocation to the tradesmen and to all who had acted upon the faith of his authority and sanction. That would be the general rule; but where an agent is clothed with an authority, and afterwards that authority is revoked, unless that revocation has been made known to those who have dealt with him, they would be entitled to say, ' The principal is precluded from denying that that authority continued to exist, which he had led us to believe, as reasonable people, did formerly exist.' Now, there may be many cases in which the husband has a prohibition by the husband, notice of which is brought home to the creditor, will in any view relieve the husband from liability.1 But no notice of non-liability will divest the husband of the duty incumbent on him to give his wife, when she is dependent on him, and when he has the means, the necessaries of life.2 And it is also agreed on all sides, that, when the articles furnished are not necessaries in the sense of being needed to support life, though suitable, as articles of dress, to the wife's station, a tradesman supplying the wife with goods does so at his own risk, and cannot recover if it appear that the wife has an adequate allowance from the husband, and is forbidden to buy goods on his credit, though the husband and wife continue to live together, and it is not proved that the tradesman had notice of the prohibition.3-A wife's action, as her husband's agent, in excess of her authority, may impose liability on him if subsequently ratified by him.4.