Opinion by
Kinney, J.Suit brought by Johnson to recover six hxindred dollars, which he alleged to be due for professional Services as the attorney and solicitor of Sarah Williams the wife of the defendant.
.By the bill of particulars filed, it appears that the services were rendered in a suit brought by'ihe wife for divorce.
On the trial the .plaintiff-’s counsel prayed the court to .give the following instruction : “That-a husband is by law liable on an implied promise to pay lawyers, and officers of the court, for their reasonable changes and fees, for services rendered to the wife in prosecuting her ’right to divorce and alimoby, üpon the ground of necessaries; which instruction the court 'refused. But instructed the jury that "the defendant was ndt liable for professional services rendered to the wife of defendant in procuring a divorce and alimony, if-Such divorce and alimony are obtained, unless he was employed By defendant, either in person or agent, or unless defendant promised to pay, or unless he was ordered to pay for such services by the court. The refusal to give the instruction asked, and the instruction given by the court, are assigned for error.
We think the cohrt ruled correctly. Without an express or implied,promise-on the part of the husband to pay the 'debts of the wife, he is only bound for necessaries. In law the terin'“¡necessaries ” is understood to mean not only articles which are of absolute necessity, but also such things as are suitable ''to the fortune and condition of the person to 'Whom they 'are supplied; Seaton v. Benedict, 5 Bing. R. 28; Story on contracts, § 98, p. 102. Are the expenses incurred in carrying on a law suit for a divorce, necessaries, according to the technical legal m eaning of that word ? After a careful examination of the elementary works and -reports *99:upon the subject of the liability of the husband for the-debts of his wife, we have not been áble toifind an author or an adjudged case, thabregards the expenses oftsuclMuit in the light of necessaries. It has been the custom of courts after ..granting the wife a divorce, to decree an allowance in favor of her attorney. This in-some-states is regulated by-statute, iu others by uninterrupted custom, but we .-dud:no case where the husband has been sued and a: recovery had upon the ground of necessaries. ’ The wife did not bind the bus-hand as his agent, for it -is a well-settled‘rule, that the wife can only hind the husband by her contract as his agent acting under his authority ©r with his concurrence, express or implied. Story on Contracts, § 96, p. 100. The husband— ■ the defendant — then was • not liable as for necessaries, nor • upon the authority of the wife to employ counsel as his |-agent, without proof thatshe had such-authority, or that he .concurred in-her acts in that particular.
J. Matthews, for plaintiff in error. Geo. C. Dixon, for defendant.• 'Judgment affirmed.