gave all necessary directions regarding the same. 116 The fact that the wife undertook to control to some extent the actual performance of the work." The fact that the wife knew that the house in question was being built under the husband's management, and occupied it after it had been completed. The fact that the husband had previously transacted similar business with her approval and under circumstances showing that she recognized her responsibility in respect of the services performed.9 The fact that the husband had been his wife's agent in respect of the purchase and subsequent management of 6 Arnold v. Spurr (1881) 130 Mass. 347, The court said: "It is not to be assumed that it was as an agent of the defendant that he had the management, nor are the acts which he did in such management, nor the directions and orders, to be presumed to be of such a character as to prove agency." 7A portion of the evidence which, in Elliott v Bodine (N. J.) supra, was held to indicate liability on the part of the wife, was thus stated by the court: "About two days before the work was begun, it is admitted by the plaintiff in error that she went in a carriage to the shop of Bodine and again requested that the work should be commenced as soon as possible. It furthermore appears by the evidence that she was present frequently while the work was going on, and also gave some directions concerning it, and repeatedly urged that the building should be completed by a certain date in readiness for a party to be given." the land upon which the construction work to which the claim has reference was performed.10 The fact that the wife, when she gave direction as to the manner in which a certain piece of work was to be done, told the claimant that the work was hers, and that she expected to pay for it.11 The fact that the wife took no measures to show that, although she was receiving the benefit of certain materials which, to her knowledge, were being furnished for the work, she was not to be liable for the cost of them.12 The wife's situation and the condition of her health at the time when the work was performed.13 8 Arnold v. Spurr (1881) 130 Mass. 347 (action for price of materials). 9 Lunge v. Abbott (1915) 114 Me. 177, 95 Atl. 942. 10 Elliott v. Bodine (1896; Err. & App.) 59 N. J. L. 567, 36 Atl. 1038. 11 The normal significance of this fact was recognized in Ainsley v. Mead (1870) 3 Lans. (N. Y.) 116; but its effect was held to be overcome by the testimony of the husband and wife that the contract was made by the former for himself, and on his own responsibility; and by the testimony of the plaintiff, that he did not know, when the contract for doing the work was made, that the wife owned or had any interest in the farm; and that, instead of treating her as principal, he settled with the husband, and took his individual note in payment of the balance due for his services. 12 Arnold v. Spurr (1881) 130 Mass. 347. 13 In Lunge v. Abbott (Me.) supra, a verdict in favor of the plaintiff in an action to recover $55.70 for materials and labor In Whipple v. Webb (1904) 44 Misc. 332, furnished in putting a heating furnace into 89 N. Y. Supp. 900, affirmed in (1905) 101 the defendant's house, under a contract App. Div. 612, 92 N. Y. Supp. 1150, the therefor made by her husband, to whom the right of a plumber to recover against a plaintiff gave credit, supposing him to be married woman for work done and mate-the owner of the property, was held to be rials furnished in a house which was being built under a contract with her husband was held to be inferable from evidence which showed that the house was being built for sale, not for residence; that the defendant knew the work was going on; and that she was around the house while the plumbing was being put in, and gave some directions as to alterations in it. warranted by evidence showing that the husband had charge "outdoors" of the farm on which the house was situated; that, according to the testimony of certain carpenters who made various alterations in the house, they were employed by the husband, who seemed to be in charge of the work and gave them instructions; that the wife was there while this work was going on; In Porter v. Terrell (1907) 2 Ga. App. that subsequently the house was further 269, 58 S. E. 493, evidence that the wife improved; that the husband hired the was present for a part of the time while workmen for this work and the wife paid work on her house was being done at the them with her checks, some of which the instance of her husband, and made a sug-husband made out for her to sign; that gestion as to putting in a certain wash before she went to the hospital one Hall basin, coupled, however, with the injunction was employed by the husband to make that the claimant should see her husband some repairs and alterations inside the about the matter first, was held to be in-house; that subsequently he was employed sufficient to show that she was an undis- by the husband to do work on the outside closed principal, and the husband merely of the buildings, and the wife was there her agent. and gave him some directions as to the Whether the declarations of the hus- | doubtless be applicable, in a similar band are competent evidence for the state of the evidence, to case involving purpose of establishing his agency is a the claim of a subcontractor for work question determinable with reference to and labor. the general rules of the law of agency in that regard.14 Where the evidence is such as to justify the conclusion that the husband acted as the agent of his wife in employing a contractor to erect a building, and it also appears that it was the custom of builders so employed to leave orders for materials with materialmen, to be charged to the account of the employer, the wife is liable for the cost of the materials furnished to the contractor. 15 The same doctrine would work, but his "general instructions" were given by the husband. The court said: "It is true that the wife was not at home when the furnace was put in, but she testified that there was no heat in the house when she went away, the chimney having been taken down. Apparently repairs on the house had then been commenced. Is it an unreasonable inference from the circumstances, that her husband, in her absence in the hospital, was her general agent to carry on the work of repairing the house, rebuilding the chimney, and putting in some heating appliance? When he made the arrangements for the furnace to be put in he told the plaintiff that his wife was in the hospital, that he must have heat in the house before she could come home, and that she was coming very soon.' . 14 In Shesler v. Patton (1906) 114 App. Div. 846, 100 N. Y. Supp. 286, where the defendant was held not to be liable for the balance due for certain plumbing work done, under a contract made with her husband in a house of which she was a tenant at a monthly rental, the court argued thus: "Agency cannot be established by the mere declarations of the alleged agent; and proof that the alleged principal was present when the work was being done, where it appears without contradiction that she was not the owner of the property in process of repair, will not change the well-settled rule in this respect. The record in this action contains no evidence that any declaration of her husband was made in her presence or brought to her knowledge; that she made any payments for the work, or that it was her money that was used for that purpose by her husband, or that she ever told the defendant that she owned the property, or that her husband was her agent; and she testified that he was never her agent in any business dealings she ever had. While the evidence is sufficient to warrant a recovery against her for the value of extras ordered personally by her, in favor of a plaintiff entitled to enforce her liability as an undisclosed principal, it lacks the necessary elements to sustain the judgment recovered against her in this action." The cases so far discussed are distinguishable, so far as regards the actual theory upon which recovery was sought, from those in which the specific issue raised by the plaintiff's allegation is whether the contract of employment was made with the husband or with the wife as principal. But it is obvious that the evidential elements appropriate for the determination of the latter issue will frequently, perhaps usually, be similar to those which are deemed to be relevant with respect to the former.16 15 Elliott v. Bodine (1876) 59 N. J. L. 567, 36 Atl. 1038. The court said: "An agent, in carrying out the object of his appointment, may follow the well-known and general customs of his employment. The procurement of materials was a necessary part of the work and duty cast upon Bodine in his employment by Elliott to build the barn, and his ordering materials from Rolfe was not the exercise of a delegated agency, but a part of the duty which he undertook when he was employed to build the barn by Elliott." 16 In Fowler v. Seaman (1869) 40 N. Y. 592, where the plaintiff sought to recover for extra work done upon a building by direction of the husband, the finding that he directed the work as his wife's agent and on her behalf, and not on his own account, was held to be justified by evidence which showed that the defendant was owner, in her own right, of a leasehold interest, for a term of years, of a lot; that her husband made a contract, in his own name, with the plaintiff's assignor, for the erection of a building thereon, for the sum of $17,400; that the contract price was paid principally from means procured by the defendant from and by encumbrances placed by her upon her separate estate; that before the completion of the building, the defendant leased the premises for a term of seven years, and in the lease covenanted to erect and complete a building thereon in precise accordance with that specified in the contract. In Cutter v. Morris (1889) 116 N. Y. 316, 26 N. Y. S. R. 508, 22 N. E. 451, where a nonsuit was declared to be erroneous, for the reason would, if believed and interpreted accordthat the plaintiff's evidence ing to his theory, have justified a verdict in his favor, the admitted facts were that the plaintiff rendered services of the nature described in the complaint for someone; that they were rendered in erecting an addition to a dwelling-house owned and occupied by the defendant; that she knew that this improvement was to be made upon her property through the agency of the plaintiff; and that subsequently she knew that the work was in progress under As to the circumstances under which the wife's property becomes subject to his supervision. The court observed: "As the services in question were rendered for the benefit of the separate estate of the defendant, and she knew it at the time, the natural presumption is that they were rendered at her request. The conversation between the parties, which is claimed to be equivocal, should be interpreted in the light of this presumption. When, therefore, the plaintiff commenced a conversation with the defendant by saying: 'Mr. Morris tells me that you are about to erect an addition to your house,' there can be little doubt as to what she understood him to mean. Yet if he was mistaken in addressing her as the principal, she made no effort at any time to correct his impression." a mechanics' lien for work performed or materials furnished under a contract entended to this business for her. Plaintiffs admit that the husband gave the order, that they thought that he was the owner, and that they sent him the bill." In Newcomb v. Andrews (1879) 41 Mich. 518, 2 N. W. 672, the grounds upon which an action for services rendered in altering the defendant's house was held not to be maintainable were thus stated: "There is no testimony whatever that plaintiff ever looked to defendant or supposed he was dealing with her, or that she supposed she was dealing with him. The general direction and oversight which she exercised did not differ in any respect as to the extra work from that relating to the contract. It was the same from first to last, in makIn Mackey v. Webb (1889; Sup. Gen. T.) ing the plans and seeing to their comple2 Silv. Sup. Ct. 421, 25 N. Y. S. R. 308, 6 tion by the workmen. The oversight was N. Y. Supp. 795, a verdict against the wife precisely what might be expected of any for the amount due to persons who had, at wife in the house of her husband; and the her husband's request, performed work and fact that it was her own house does not furnished materials for making improve- make any difference if the work was not ments on her separate property, was held done on her account and by her procureto be warranted by evidence that she was ment as contracting party. The plaintiff's present when the work was performed and testimony shows conclusively that the husmaterials were furnished, and made no ob- band was the only person to whom he jection; that on one occasion she cautioned looked or with whom he dealt as conthem about placing stone upon her garden; tractor. After the whole work was done, and that she and her husband consulted to- the extras as well as contract work were gether about the work and plan of the im- charged to him, and payments were made provements to her house. The authority by him. There is no proof that he was actmainly relied upon was Fairbanks v. Mothing as his wife's agent. No bill was ever ersell (1871) 60 Barb. (N. Y.) 406, where the right of a laborer employed by the defendant's husband in the capacity of a servant to perform work on her separate estate was affirmed on grounds thus stated: "The case stands simply upon an employment [of plaintiff] by the husband to work for his wife on her separate property, without any express agreement whether he should be paid by the husband or wife. The defendant knew the plaintiff was at work there, and saw the kind of work he was doing, and the law will imply a promise on her part to pay for the services if it was, in fact, her work." This decision was approved in Perkins v. Perkins (1872) 7 Lans. (N. Y.) 27, 62 Barb. 539. In Bannen v. McCahill (1890; Sup. Gen. T.) 30 N. Y. S. R. 305, 8 N. Y. Supp. 916, the contention that a wife was liable on a sealed contract signed by her husband was rejected, where the evidence showed that all the money due under the contract was paid by him; that he had entire control of the work in question; and that the defendant did nothing in respect thereto except to file the application with the building department. presented to her, and no payment was ever asked of her. It is the not uncommon case of a husband making improvements at his own expense for the benefit of his wife." One of the cases relied upon was Emery v. Lord (1873) 26 Mich. 431, where, in an action on a note given by a wife to secure a debt of her husband for materials which went to improve her separate estate, the law was thus laid down with reference to a new trial: "If the materials furnished by the plaintiff were thus used in improving her property, without her having paid or become bound to pay to the husband or anyone else for them, or if the husband, as between him and his wife, was acting only as her agent, then, whether the note was given in extinguishment, or only as security for the indebtedness, and though the credit might originally have been given to the husband, there was a good and valuable consideration for the note, and she would be bound." Compare also Wagner v. Jefferson (1876) 37 U. C. Q. B. 551, where it was held that no action could be maintained for the price of materials used in a house which the defendant was building on her own property, where the evidence showed that the husband alone contracted with the plaintiff, and that the plaintiff sold the goods in question upon the husband's credit, and without any knowledge that he was getting them for the wife, or for her private In Friedman v. D'Amico (1910; Sup. App. T.) 123 N. Y. Supp. 953, a verdict against a married woman for the cost of painting and paper hanging in her house was reversed on grounds thus stated in the very brief opinion: "She showed that she had a real estate agent who always at-property. tered into with her husband, see note to Milligan v. Alexander, A. L. R. §19. Wife as agent of husband. The cases which illustrate the liability of a husband for service performed at the request of his wife are divisible into the following classes: (1) Cases in which the wife was cohabiting with her husband at the time when the plaintiff was employed by her, and the services rendered were alleged to be of such a character as to bring 1 Schouler, Husb. & W. § 106; Schouler,, Dom. Rel. § 68. Compare also MacQueen, Husb. & W. pp. 95-108. services as her own debt, and recover the amount as a part of the damages in an action for the injury); Towery v. McGaw (a) Work and labor with respect to houses. (1900) 22 Ky. L. Rep. 155, 56 S. W. 727, 982 (decided with reference to Ky. Stat. 2 In Wennerstrom v. Kelly (1894; N. Y. § 2130, which embodies the common-law C. P.) 7 Misc. 173, 27 N. Y. Supp. 326, the doctrine); Ketterer v. Nelson (1911) 146 liability of the husband for repairs which Ky. 7, 37 L.R.A. (N.S.) 754, 141 S. W. 409 his wife had authorized the plaintiff to claim of husband to be reimbursed out of make in their house was affirmed on grounds proceeds of wife's separate property for thus stated: "The exercise of this implied authority on the part of the defendant's money paid to physicians and nurses was wife is inferable, as before stated, from rejected); Mulligan v. Mulligan (1914) 161 the facts that she knew that some of the Ky. 628, 171 S. W. 420; Spaun v. Mercer repairs were being made, and approved of wife's separate estate denied); Webber (1879) 8 Neb. 357, 1 N. W. 245 (liability thereof; and that the remainder of the rev. Spannbake (1876) 2 Redf. (N. Y.) 258 pairs were made upon and within premises (husband liable, though wife possesses sepat the time actually occupied by her and arate estate); Re Shipman (1889) 22 Abb. her husband for the purposes of their common household, and which, as such, were N. C. 289, 5 N. Y. Supp. 559 (claim of hussubject to her control and that of her husband, acting as executor of his wife, to be band." It may be remarked that, upon the facts, this case seems to be scarcely consistent with the decision of the appellate term in Proctor v. Woodruff (1909) 119 N. Y. Supp. 232. But the rationale of that decision is different. See note 15, infra. In Jetley v. Hill (1884) 1 Cab. & El. (Eng.) 239, the jury were directed by Pollock, C. B., that the husband, by adhering to the wife's orders as to the furnishing of work and material for their house, and using the materials when they arrived, had allowed her to hold herself out as his agent. For a case in which the inability of the plaintiff to enforce a claim in respect of work and labor performed in building an addition to a house was predicated on the ground that there was no evidence to show that it was "necessary" within the meaning of the Kentucky statute, see Pell v. Cole (1859) 2 Met. (Ky.) 252. (b) Medical attendance. For cases in which the liability of the husband in this regard was affirmed, see Harris v. Lee (1718) 1 P. Wms. 482, 24 Eng. Reprint, 482, Prec. in Ch. 502, 24 Eng. Reprint, 225; Cothran v. Lee (1854) 24 Ala. 380; Black v. Clements (1899) 2 Penn. (Del.) 499, 47 Atl. 617; Columbus v. Strassner (1894) 138 Ind. 301, 34 N. E. 5, 37 N. E. 719 (husband prima facie liable, but injured wife may treat expense of medical allowed the amount expended by him for 121 N. Y. Supp. 942, the liability of the wife On the other hand, in Reed v. Crissey (1895) 63 Mo. App. 184, where the wife insisted on going to another city for treatment, it was held that the husband could not escape liability on the ground that his wife had entered into a written agreement that she would not incur any debt against him for doctors' fees in respect of the treatthat competent medical services were ofment of her malady. But there the defense fered to her at home was declared not to have been established. In Kennedy v. Benson (1913; Sup. App. T.) 144 N. Y. Supp. 787, it was held that a physician who, during the defendant's temporary absence, had operated on his wife, could not maintain an action for the services so rendered, the evidence being that she did not request the operation, but merely acquiesced therein. Only a short per curiam opinion is reported, and precedents were cited by the court. no In Wood v. O'Kelley (1851) 8 Cush. (Mass.) 406, the court held that, while a husband is ordinarily liable for medicines against him has been considered with 3 (2) Cases in which the claim is founded on the same theory as to the character of the services as being necessary, but the husband and wife were living separately at the time when they In one case the right to recover for were rendered. The extent of the hus- medical services seems to have been band's liability under this head depends viewed as turning simply upon whether primarily upon the circumstances under the husband agreed to make an adequate which the separation was commenced allowance for the wife's maintenance, and continued. The right of action and duly performed the agreement. In and medical advice furnished to his wife | vided by a husband for his wife, to sustain during his absence, he cannot be held re- her as his wife, and not to provide for her sponsible where they were furnished by a future condition as a single woman, or perperson who did not profess to be a physi-haps as the wife of another man"); nor by cian, or to have any medical skill or knowl- an attorney who had rendered services to edge of diseases or their remedies. the wife in a groundless action brought by her, without the husband's consent, to recover premises which were in the peaceable possession of his tenant, but were claimed by her to have been the family homestead (Plymat v. Brush (1891) 46 Minn. 23, 48 N. W. 443). For cases in which the implied authority of a wife to employ a doctor to attend on her children was recognized, see Howell v. Blesh (1907) 19 Okla. 260, 91 Pac. 893; Davenport v. Rutledge (1916) Tex. Civ. App., 187 S. W. 988. Where a wife requests medical treatment for an infant, it will be presumed, in the absence of proof, that she is acting as agent of her husband; but such presumption may be overcome by evidence. Howell v. Blesh (Okla.) supra (syllabus of court). (c) Legal expenses. It has been held that a husband is liable for legal services rendered to his wife in successfully defending her against a complaint instituted against her for being a common drunkard (Conant v. Burnham (1851) 133 Mass. 503, 43 Am. Rep. 532); or in defending her against a charge of murder (Artz v. Robertson (1892) 50 Ill. App. 27, s. c. on demurrer (1890) 38 Ill. App. 593); or in regard to her commitment as a lunatic, and subsequent discharge (Moran v. Montz (1913) 175 Mo. App. 360, 162 S. W. 323); or in the entering of a complaint against him for breach of the peace (Morris v. Palmer (1859) 39 N. H. 123). On the other hand, we find decisions to the effect that no action could be maintained against the husband by a person who had advanced money to pay the fees of an attorney whom the wife had employed to prefer an indictment against the husband for assaulting her (Grindell v. Godmond (1836) 5 Ad. & El. 755, 111 Eng. Reprint, 1351, 1 Nev. & P. 168, 2 Harr. & W. 339, 6 L. J. K. B. N. S. 31); nor by an attorney who had rendered services to the wife in instituting a complaint against the husband for an assault and battery on her (Conant v. Burnham (1851) 133 Mass. 503, 43 Am. Rep. 532; Smith v. Davis (1864) 45 N. H. 566 (no finding by referee that the expenses were necessary, nor that there were reasonable grounds for the proceeding); nor by an attorney through whose efforts a reconciliation had been effected between the husband and wife (Kuntz v. Kuntz (1912) 80 N. J. Eq. 429, 83 Atl. 787 (where the doctrine was laid down that "necessaries are to be pro Reference may also be made to a case in which it was held that the expenses of the trustee of a wife's property in procuring the preparation of a deed of separation which the husband had consented to execute could not be recovered from the husband. Ladd v. Lynn (1837) 2 Mees. & W. 265, 150 Eng. Reprint, 755, Murph. & H. 27, 6 L. J. Exch. N. S. 73, 1 Jur. 42 ("not a thing necessary for the protection and sustenance of a wife"-Lord Abinger). (d) Education of children. In Parrott v. Peacock Military College (1915) - Tex. Civ. App. -, 180 S. W. 132, certain evidence (not stated) was held to show that a wife had acted as her husband's agent in contracting for the education of their son at college. 3 Beale v. Arabin (1877; C. P. D.) 36 L. T. N. S. (Eng.) 249. There the defendant had granted his wife an allowance which was not inadequate if paid regularly; but it had not been so paid. In an action brought for medical services, it was shown that a part, at least, of the bill, was for attendance required in consequence of the defendant's cruelty. The finding of the trial judge in favor of the plaintiff was sustained, the court being of opinion that the case came within the scope of the general rule laid down in the note to Manby v. Scott (1661) 2 Smith, Lead. Cas. 7th ed. (Eng.) 488, that, if a husband and wife separate by mutual consent, the wife has an implied authority to bind her husband for articles suited to her degree, unless she have an adequate maintenance, and unless that allowance be duly paid to her. Two earlier cases were cited, which involved analogous circumstances, and in which the right of recovery was affirmed,-Brown v. Ackroyd (1856) 5 El. & Bl. 819, 119 Eng. Reprint, 686, 25 L. Q. B. N. S. 193, 2 Jur. N. S. 283, 4 Week. Rep. 229 (expenses of suit for divorce a mensa et thoro); Rice v. Shepherd |