Hawley v. Morton

By the Court, Balcom, J.

The bond upon which this action is founded bears date the 22d day of November, 1848. The condition of the same is, that the defendant and his wife shall from time to time, and at all times during the natural life of the plaintiff, well and sufficiently maintain and keep her, or cause her to be well and sufficiently maintained and kept, “in the house of him,” the defendant, “ with meat, drink, clothes and all other things necessary and convenient.” The action was tried before a referee, who found that the plaintiff was supported by the defendant, in his house as one of his family, with board and clothing, for about one and one-fourth years after the giving of the bond, when she left the defendant’s house, and has not since returned there to remain with him, and since which time the defendant has contributed but little to the plaintiff’s maintenance and support. The referee also finds that the plaintiff did not live very happily with her daughter, who was the defendant’s wife; that they had some hard words, and that the best of feeling did not exist between them ; that the plaintiff was an elderly woman and preferred to live with a younger daughter, where her residence has been more agreeable. That from the facts proved it required a good deal of forbearance on the part of the defendant, which had not been exercised towards the plaintiff; but who was at fault in the family controversy he did not think it necessary to determine, inasmuch as he found that the plaintiff was justified in seeking other sources to provide herself with raiment. The refereealso thought the facts proved might justify him in reporting in favor of the plaintiff for her board ; but he says that seemed never to have been required of the defendant, or asked, or demanded. He also states that so far as clothing is concerned he does not think that the defendant fulfilled his contract; that in this respect the bond-had been broken. Also that he was inclined to make a distinction between the clothes and board, holding the defendant responsible for the former, and not for the latter. The referee found as matter of law that the defendant was liable on the bond for four and seven-twelfths years clothing, with interest, after deducting some articles furnished by the defendant, amounting to the sum of $180; for which sum the plaintiff has entered judgment against the defendant, with costs.

It might be inferred from the tenor of the decision of the referee, that he was of the opinion the plaintiff was justified in leaving the defendant’s house, by reason of improper conduct towards her on the part of the defendant or his family, if he had not expressly stated that he did not think it necessary to determine who was “ at fault in the family controversy.” This is the most important point in the ease; for the defendant never expressly refused to furnish the plaintiff with clothing, if she would live at his house. The bond only obligated the defendant to sufficiently maintain and keep the plaintiff, in his house, “ with meat, drink, clothes and all other things necessary and convenient.”

Assuming, as we must, that the referee has not found that the defendant ever refused to board or clothe the plaintiff, provided she would live in his house, his finding of facts does not sustain his conclusions of law, unless the defendant was obliged to clothe the plaintiff wherever she chose to live, if she sent for, or called for her clothes at the defendant’s house. I am of the opinion the defendant was under no such obligation. He agreed to furnish the plaintiff with board and clothing in his oum house and not elsewhere. The plaintiff was to live with the defendant, and upon her living with him depended her right to require him to board and clothe her, and I can see no ground for the distinction taken by the referee between the board and clothing. (See Pool v. Pool, 1 Hill, 580; McKillip v. McKillip, 8 Barb. 552; 17 id. 410.)

If the plaintiff left the defendant’s house without sufficient cause therefor, the defendant was under no obligation to furnish her with either clothes or board. But if the conduct of the defendant or his family towards the plaintiff was such as to make it improper for her to remain in the defendant’s house, it was a breach of the condition of the defendant’s bond, and the plaintiff had the right to leave there and procure board and clothes elsewhere, and charge the defendant for the same. And under such circumstances no demand of board or clothing of the defendant was necessary. But as the referee has not found that the plaintiff had sufficient cause for leaving the defendant’s house and living elsewhere, but expressly held it wa.s not necessary to pass upon that question, the judgment in the action must be reversed and a new trial granted, costs to abide the event.

[Chenango General Term, October 21, 1856.

Decision accordingly,

Shomklamd, Gray, Mason, and Bdlcom, Justices.]