The plaintiffs in this case sold to the defendant’s acknowledged wife some articles which the jury decided to be necessaries upon evidence which was conflicting. At the time of the sale, the. defendant and his wife were living separate and apart, and had commenced actions, each against the other, for a divorce ; but no alimony had been allowed in either of the cases, and the defendant had not contributed toward Ms wife’s support, nor made any provision for her after their separation. The separation was induced by alleged cruel treatment on the part of the defendant toward her, which rendered it unsafe for her longer to cohabit with him.
The jury, after hearing the evidence upon that subject, found for the plaintiffs, and by their verdict declared that it was sufficient to justify the defendant’s wife abandoning him from apprehension of personal injury. These findings are conclusive upon the defendant. They relate to questions of fact exclusively, and cannot for that reason be disturbed.
After a careful and thorough examination of the questions which were in that way presented, it is deemed unnecessary to decide them, inasmuch as there is a rule of law applicable to that branch of this case which settles the liability of the defendant. He was married to the person whom he now disclaims, by a proper legal formula. He cohabited with her and introduced her as his wife, as well to others as to the plaintiffs in this action, or one of them. Having done so, they were justified in dealing with her as occupying that relation to him, and he is estopped from denying it so far as they are concerned (Mace v. Cadell, Cowp., 233; Robinson v. Nahon, 1 Camp., 245). Upon the strength of his acknowledgment they dealt with her. They did so at their peril, it is true, but only upon the questions whether the defendant provided for her, and the articles sold were proper and necessary articles, considering the wealth of the husband and the position he occupied in the community.
Having arrived at this conclusion, the whole scope of the defense, except such as related to the questions passed upon by the jury, as already stated, became wholly irrelevant. It is said in Story on Contracts, that so strong is the presumption of the assent of the husband to the wife’s contract, created by cohabitation, that it has been decided that if a man cohabit with a woman, holding her out to be his wife, he is liable for goods furnished to her during their cohabitation, by a tradesman who lenew that they were not married. A fortiori this would be the case if the tradesman suppose them to be married {Story on Contr., § 101). The same rule is declared in 1 Comyn on Contr., 214; Watson v. Threlkeld (2 Esp., 637); Hudson v. Brent {Esp. N. P., 124); Car
It is true that where no marriage has in fact taken place, the separation of the parties relieves the husband,, so called, from liability for goods sold after that incident, as suggested in Munro v. De Chemant, by Lord Ellenbobougkh ; but that rule has no application to this case, inasmuch as there had been a marriage. I do not either subscribe to the suggestion as sound in principle in the absence of notice of the actual relation existing to a person who has been allowed to deal with a woman as a wife, or was allowed to so regard her by the so-called
It is unnecessary, however, to pursue this subject further. It is clear from these authorities that after marriage, whether lawful or not, as long as it exists, third persons without notice, who have dealt with the wife on the assumption that she was indeed such, and which assumption was based upon the representation of the husband himself, can recover for necessaries furnished her, if the husband fail to provide them. It is no answer to the demand thus made that there is an action for divorce pending, unless alimony has been allowed (Sykes n. Halstead, 1 Sandf., 483 ; 1 Bish. on M. & D., § 401).
The judgment should be affirmed.