At Common Law the personal existence of a married woman is merged, for the most part, in that of her husband. Her disability is almost complete. Her personal property, by marriage vests in the husband ; and the right of disposition of her real property, and even taking its fruits, is taken away from her. “ In general, whatever she “ earns during marriage she earns as his servant, and for him; “ for, in law, her time and her labor, as well as her money, are “ his property.” (1 Parson’s on Contracts, 286.) And notwithstanding the husband lives apart from his wife, and in a state of continued adultery, his right to her personal property continues, (7 Pick. 75; 2 J. J. Marshall, 82,) including her earnings before and after marriage. (10 Pick. 429; 1 Parsons on Contracts, in notes, p. 286.)
*461But even under this system, so hostile to the rights of property in the wife, she may be the agent of the husband, and, in that capacity, make contracts which shall bind him ; and this agency need not be express, but is raised, by law, from a variety of circumstances. As a general rule, whatever she purchases for herself and the family, the husband is liable for, provided they be necessaries: that is, articles suited to her situation and the means of the husband and his condition in life.
This liability results from his implied authority; but he may be held, by express assent, for articles which are not necessary ; and this assent may be inferred from slight circumstances : as, for instance, where he knows of her posses-session and use of the property, without^ making any objection. It seems to have been a general rule, as laid down by the earlier authorities, that the husband might withhold his authority, and was saved from liability, even for necessaries, by express notice and prohibition : as, for instance, a tradesman, prohibited by a husband from supplying his wife with articles of dress, could not recover against the husband, because, in the language of Lord Hale, “it shall not be left to a ‘‘jury to dress my wife in what apparel they think proper.” This rule, that the implied authority of a husband may be rebutted by proof of express prohibition, is shown by Parsons, in his able work on contracts, to be incompatible with the later authorities, and as one which should be modified wherever circumstances required such modification; and he instances the case of a rich and penurious husband, giving his wife garments enough to prevent her from suffering from cold, but of such coarse materials that she could not well wear them in the streets ; or from bad temper refusing her clothing, so that for decency’s sake she was obliged to remain in her chamber, and even there suffered from cold. It could not be doubted that in such cases the husband would be held liable, and that his authority would be presumed by la.w, against his express pro*462hibition, as has been held where the husband turns the wife out of doors without her fault, and that though according to the saying of Lord Hale, “ the law will not presume so much “ ill as that a husband should not provide for his wife’s neces- “ sities yet this being proved, the law will not do so much ill as to leave her without necessaries.
The author then states that the later authorities seem to change-the ground upon which the liability of the husband for necessaries furnished the wife has hitherto rested. This had generally been put upon her agency and his authority. This was sometimes stretched too far. His authority was presumed from circumstances which suggested no probability of such authority, but negatived any such supposition. The supposition was not only without fact, but against fact. It was in truth a mere fiction of law, in cases where the wife, driven from the house and presence of the husband with manifestations of his hatred, incapacitated perhaps by infirmities of body and mind from making a contract at all, is supplied with necessaries and the husband held liable for their payment. For these and other reasons; says the author, the Courts now show a tendency “ to rest the responsibility of the husband, “ for necessaries supplied to the wife, on the duty which grows “ out of the marital relation. He is her husband ; he is the “ stronger, she the weaker; all that she has is his ; the act of “ marriage destroys her capacity to pay for a loaf with her “ own money ; and as all she then possesses, and all she may “ afterwards acquire, are his during life and marriage, upon “ him must rest, with equal fulness, if the law would not be “ the absolute opposite of justice, the duty of maintaining her “ and supplying all her wants, according to his ability. And “ we think this plain rule of common sense and common morality is becoming a rule of the Common Law.” (1 Parsons on Contracts, p. 290, 291.)
I have cited at much length the substance of a portion of the chapter of this accomplished jurist, on the Contracts of *463Harried Women, for the reason that it embodies a most accurate and just exposition of the law on that subject, as deduced from authorities entitled to weight and respect.
He has written them since many of the States had abolished the old rules as to the position and property of married women as being unjust, and have made such changes as are in harmony with the advancing condition of society, and have greatly improved the marital relation. He is evidently impressed with the conviction that there was good ground for change, and that the rights of married women should be placed on a more liberal footing, and especially with reference to the point immediately under consideration, that the wife should not be regarded as a mere agent or servant of the husband, but as a partner ; as the weaker vessel indeed, but for that reason the more entitled to comfort and support, according to the means and ability of the husband.
His views are entitled to much respect, and especially as they are supported by late decisions. In Read v. Legard, 4 Law and Eq. 523, the husband was a lunatic, confined in the asylum, and the plaintiff had supplied the wife with necessaries. It was contended by counsel in argument, that the right of the wife to bind the husband was derived from some act, real or supposed, of the husband, done after marriage, and which he must be in a condition to persist in or revoke. Pollock, C. B., said that the defendant was liable; that the action was founded on this, that the defendant has taken on him a duty ; having contracted marriage with the person sustained by the plaintiff, he has thereby become, in point of law, liable for her maintenance ; and, if he fails to provide for that maintenance, except under certain circumstances which justify him in withholding it, she has authority to pledge his credit to procure it. The Chief Baron seemed to admit that no case had yet arisen in which the precise point was brought before any Court. Alderson, B., in the course of the trial said : “ It is “ a monstrous proposition, that a man who drives a woman out *464“of doors, who hates, who abominates her, actually gives her “ authority to make contracts for him.” Martin, B., said, “ My “ brother Alderson has stated the real truth respecting the “ obligation of the defendant, and the principle of his liability, “ namely, that by contracting the relation of marriage, a hus- " band takes on him the duty of supplying the wife with “ necessaries; and if he does not perform that duty, either “ through his own fault, or in consequence of a misfortune of “ this kind, the wife has, in consequence of that relation, a “right to provide herself with them, and the husband is res- “ ponsible for them; and although, in the declaration, the “debt sued on is alleged to be the debt of the husband, con- “ tracted at his request, the truth is that it is the wife who “ contracts the debt, while the husband is responsible for it.”
That this is the true ground of the husband’s liability for necessaries for the wife, viz. : his duty, arising from the marriage relation itself, to supply her with necessaries, cannot admit of question. It is comprehensive, embracing all cases where articles of necessity have been furnished. It requires no legal fiction for its support. It is consistent with fact, and it is founded, to some extent, on the great fact that all she posesses, her time, labor and money, belong to the husband ; and if at Common Law, the true principle of the liability of the husband arises from his duty under the marriage relation by which he is vested with the property of the wife, so much the more strongly is it his duty under the marital relations in this State, by which he is not vested with the property of the wife, but has the management and control of that property and its proceeds, and, so far as they become community gains, has disposing power as master and owner. If bound, at Common Law, to support the wife out of his own property, the law having vested the property of the wife in him, he surely should be compelled, under our laws, to supply the wife from the proceeds of her own property, or from that of the community, in which she has an equal interest with himself.
*465The articles furnished the wife, in this case, were proved to be necessaries. But the husband, who was shown, on the trial, to be worth fifty thousand dollars, and had besides, community property amounting to fifteen thousand dollars, attempts, in Ms answer and amended answers, to screen himself by various excuses from his obligation. The first is, that the plaintiff dealt with the wife as a feme sole, that he did the work on her sole credit, and, in settlement therefor, took her promissory note, and that he did not look to the husband for payment, or consult him in relation to the work. If there be any good sense in the rule, that where credit is once given to the wife, the husband will not be liable though the articles may be necessary, it is in cases where the wife has a separate income, or separate property of her own, and under her own control. In other cases the rule would be quite preposterous. Her notes, obligations or contracts are void. Her money, time and labor are not her own, but her husband’s ; and she is wholly under his control; and it is idle to talk of a tradesman giving credit and expecting payment from a wife who has no property and no will of her own, both being absorbed by the husband, whose duty it is, under the marriage relation, to purchase and pay for these supplies. In Equity, where the husband is the manager of the separate estate of the wife, and, in purchases for the estate, gives his own note, the estate will be liable. In Carter v. Eveleigh and wife, 4 Dess. 19, the husband acting as manager of the separate estate of the wife, had purchased a saw gin for the use of the estate. The estate was held liable, though the husband bad given his own note for the gin, and the vendor, believing him the owner of the property, had pursued him to insolvency. In Cartwright v. Hollis, 5 Tex. R. p. 169, in treating of the separate estate of the wife, its management by the husband, and its liability for debts, we said, in substance, that the distinction in some of the cases, exempting the estate from liability because credit is given to the husband and not to the wife, is frivolous and founded on no principle. *466The important question is, Were the supplies for the benefit of the estate ? If so, the estate is liable. This principle is applicable to the case in hand : the important question is, Were the articles necessary for the wife ? If so, the husband is liable, whether credit was given to the wife or not, she having no separate income of her own, under her own control.
Nor is there more force in the second ground of defence as pleaded, viz. : that at the time of the work done for the wife, she had deserted the house of defendant, that the plaintiff had knowledge of this fact, and also that the wife was taking measures to procure a separation of the marital relation ; and, in connection with this ground, it may be stated that there is the further allegation that since the work was done, the wife had procured a separation and separate maintenance amply sufficient for her support and the payment of this demand, and that plaintiff dealt with the wife as if the separation had been then obtained.
If the separation had been complete at the time the credit was given, and had the separate maintenance been, as said by defendant, amply sufficient and actually paid, the husband would not have been liable. (1 Parsons on Contracts, p. 301, and cases cited ; 2 Bright, Hus. & Wife, p. 18.)
There is no allegation that the separation or desertion by the wife, was from fault on her part. If not, the husband is liable for supplies furnished prior to the separate allowance. (2 Bright, Hus. & Wife, 10.) This was forcibly put in the remark of Lord Eldon, that where a man turns his wife out of doors, he sends with her credit for her reasonable expenses. (3 Esp. R. 150.) The fact that separate maintenance was after-wards allowed the wife, raises the presumption that the fault was in the husband. The rule that it is the duty of the husband to pay for necessaries for the wife, separated from him without her fault, applies as we see, at Common Law even; where all the property belongs to the husband ; but, under our system, she would be entitled, in many instances, to neces*467saries, although the separation may have been by her fault; as, for instance, where her separate property is under his control, or there be a sufficient amount of community property.
As to the other grounds, as, for instance, that the plaintiff, when he performed the work, knew that defendant disapproved of it and had refused to pay for the same ; a conclusive answer. is, that the work was necessary. According to the language of some of the cases, where the husband is living with the wife and expressly prohibited the purchase of some articles, the word necessaries should be construed strictly. Under such circumstances, the opinion of the husband as to what is necessary is entitled to much weight, and persons trading with the wife should exercise due caution. But his opinion is not conclusive. The wife, in fact, whatever may be the theory and fictions of law, is very frequently the best judge of what is necessary for herself. There are circumstances under which the term necessaries should be construed strictly, but the fact of express prohibition, by the husband, is not of itself sufficient ground for such construction ; as that may be rebutted by evidence of his penuriousness, cruelty, bad temper, &c. The fact of whether necessary or not, should, with the circumstances, be submitted to the jury ; and, for whatever is suitable for the means of the husband and to the station of himself and wife, he should be held liable. (2 Kent, 120.) Where the wife is separated from the husband, without fault on her part, his express prohibition is entitled to little or no weight. He is in fault, and the law will not allow him to stint the wife in the supplies necessary to her health and comfort.
The only ground urged by defendant, which, under the circumstances, has the semblance of valid defence, is, that at the time of the contract, the wife had separate property and means wherewith to pay the claim. If the allegation had been that she had her separate property under her own control, with an income amply' sufficient to the supply of her wants, the defence might have been held available, coupled as it was with the *468allegation that the work was done on the credit of the wife. But the presumption is, that if she had separate property, it was under the control of the husband, and the defence, as stated, furnished additional reason why he should be held to the liability.
The Court charged the jury, in substance, that if they believed the plaintiff did the work for the wife of the defendant, that it was necessary for her health and comfort, and that his charge was a reasonable one, they would find for the plaintiff; that they must be satisfied that the work done was necessary for the wife, that it was an expense suited to her station in society, and the condition and estate of her husband.
The law of the case, as it arose on the facts in proof, was concisely, justly and accurately expressed in these instructions, and the jury having found in conformity with them, and with the evidence, there is no error in the judgment; and it is ordered to be affirmed.
Judgment affirmed.