Even at common law in early times it was recognized that the wife might be the agent of the husband and, as such, bind him by contracts and purchases. She herself incurred no liability even as a warrantor of her authority,72 but under modern statutes, giving a married woman power to contract, this would doubtless be otherwise. Whether a married woman is in any case agent for her husband, except in regard to contracts for necessaries, is a question of fact to be determined by the same rules which govern the law of agency in general. So far as express authority is concerned, there is no occasion for discussion. As to implied authority, however, the relation of husband and wife necessarily differentiates the situation from that of ordinary cases of implied authority in the law of agency; though the differences are of fact rather than of legal principle. Where a husband and wife are living together and the wife is in the habit of buying goods and pledging her husband's credit for them and he has been in the habit of paying the price of such goods, it may fairly be inferred that he authorizes the continued purchase of goods of that character.72 This implication may, however, be avoided if it appears that the husband warned the seller not to give credit, or if the husband and wife separate.74 As to necessaries for the wife or family, an obligation is imposed by law upon the husband similar to that which the law imposes upon infants and insane persons in regard to necessaries furnished to them.75 There is some confusion in the early cases between this obligation of the husband to pay for necessaries purchased on his credit by his wife, and his obligation to pay for goods which he had either impliedly or apparently authorized her to buy. The distinction is important because while an implied or apparent authority may be revoked by express prohibition, an obligation imposed by law, sometimes called an "agency by necessity," cannot be. This agency by necessity is limited to cases where the husband is not fulfilling the obligation imposed upon him by law to furnish support to his wife according to his station in life, owing to his fault and not that of his wife; but within this limit the husband is bound even though the necessaries are furnished against his will.76 Similarly he is liable for her funeral expenses to one who in the husband's absence or because of his refusal to act reasonably incurs the expense.77 If the parties are living apart the plaintiff in order to recover, on the theory of agency by necessity, must show that the separation is due to the husband's fault.78 If the wife is sufficiently provided for by her husband she has no agency by necessity to bind him even for articles of a sort which would ordinarily be classified as necessaries.79 Whether a wife has power to pledge her husband's credit in this way, if she has property of her own from which she could derive an adequate support, is a point which has been somewhat questioned. Two early English cases80 denied her that right. In the later of these cases Lord Ellenborough instructing the jury said: "The only credit given to the husband is an implied one, which arises from his situation and the inadequacy of the funds of the wife.....If [she was adequately provided for] the circumstance repels all idea of implied credit." This seems still to represent the law of England,81 and has some support in the United States.82 But in a recent New Hampshire case,83 the court in a careful opinion held that the wife's right was not limited by her possession of means sufficient to supply her reasonable wants. On principle, this decision seems sound. Certainly, if the husband is bound to support his wife when she is living with him in spite of the fact that she has means of her own, she ought to be allowed to pledge his credit if he fails to perform that obligation. The early English decisions went on the mistaken idea of an agency implied in fact instead of a right
68 Remington's Codes (1915), $ 6927. See Northern Bank & Trust Co. v. Graves, 79 Wash. 411, 140 Pac. 328.
69 Code (1913), Sees. 3676,3678,3682. 70 Wis. Stat. (1916), See. 2343. 71 Comp. Stat. (1910), Sec.3909. 72 Smout v. Ilbery, 10 M. & W. 1.
73 Walks v. Biddick, 22 W. R. 76; Ryan v. Sams, 12 Q. B. 460; Deben-ham v. Mellon, 6 A. C. 24; Dolan v. Brooks, 168 Man. 360, 363, 47 N. E. 406; Bergh v. Warner, 47 Minn. 260, 60 N. W. 77, 28 Am. St. Rep. 362; Feiner v. Boynton, 73 N. J. L. 138, 62 Atl. 420; Gilman v. Andrus, 28 Vt. 241, 67 Am. Dec. 713.
74Etherington v. Parrot, 1 Sulk. 118. See also Jolly v. Roes, 15 C. B. (N. S.) 628; Debenham v. Mellon, 6 A. C. 24; McKee v. Cunningham, 2 Cal. App. 684, 84 Pac. 200; Hibler v. Thomas, 99 111. App. 366; Olson Co. v. Youogquist, 76 Minn. 26, 78 N. W. 870; Hass v. Brady, 49 N. Y. Misc. Rep. 236, 96 N. Y. Suppl. 449; Segelbaum v. Enaminger, 117 Pa. St. 248, 10 Atl. 759, 2 Am. St. Rep. 662. And as to goods of a character not needed for herself or for ordinary family use no inference of authority can be made, as where goods were bought by the wife to establish her eons in business. Richburg v. Sherwood (Tex. Civ. App.), 105 S. W. 524.
75Therefore, where support is furnished to a husband and wife jointly under circumstances entitling the person furnishing the support to payment, the liability is solely that of the husband, though by statute the wife is competent to contract Lavois v. Dube, 229 Mass. 87, 118 N. E. 179.
76 Nissen v. Bendixsen, 69 Cal. 521, 11 Pac. 29; Res v. Durkee, 25 111. 603; Raynes v. Bennett, 114 Mass. 424; Dorrance v. Dorrance, 267 Mo. 317, 165 S. W. 783; Tebbets v. Hap-good, 34 N. H. 420; Ott v. Hentall 70 N. H. 231, 47 Atl. 80, 51 L. R. A. 226; Clothier v. Sigle, 73 N. J. L.419,63 Atl.
77 See Woodward, Quasi-Cont., Sec. 205. Hatton v. Cunningham, 162 N. Y. S; 1008.
78 Brinckerhoff v. Briggs, 92 111. App. 537; Sturbridge v. Franklin, 160 Mass. 149, 35 N. E. 669; Clothier v. Sigle, 73 N. J. L. 419, 63 Atl. 865; Sturvetant v. Starin, 19 Wis. 288. Compare Baker v. Oughton, 130 Iowa, 35, 106 N. W. 272.
79 Reid v. Teakle, 13 C. B. 627; Hoey v. Heehtman, 2 Cal. App. 120, 83 Pac. 85 (statutory); Bergh v. Warner, 47 Minn. 250, 252, 50 N. W. 77, 28 Am. St. Rep. 362; Oatman v. Wat-ton 105 N. Y. S. 174. Compare
Wens.v McCann. 107 N. Y. App. Div. 557, 95 N. Y. 8. 462.
80War v. Huntly, 1 Salk. 118; Lidd-krw v. Wilmot, 2 Stark. 86.
81 Dixon v. Hurrell, 8 C. & P. 717.
82Liteon v. Brown, 26 Ind. 489; Hunt v. Hayes, 64 Vt. 89, 23 Atl. 920, 15 L. R. A. 661, 33 Am. St. Rep. 917. In both these cases it should be noticed that the wife's means were derived from her husband. In the Vermont case as an allowance expressly for her support, and apparently sufficient for that
83Ott v. Hentall, 70 N. H. 231, 47 Atl. 80. See also Eller v. Crull, 99 given by law. In any event, the fact that the wife has separate property, if it is inadequate for her support, will not prevent her from pledging her husband's credit.84 The wife herself at common law could not be made liable even for necessaries.85 Now by statute in a few States, not only is she enabled to contract but her separate estate is bound though she herself did not buy the necessaries.86 Apart from such statutes, if credit is in fact given to the wife, no one else will be liable even though the circumstances were such that she might have pledged her husband's credit.87
The word "necessaries," when used in connection with married women, seems to have a wider meaning than when used in regard to infants. In a Massachusetts case,88 the court said: "As a general rule the term 'necessaries,' applied to a wife, is not confined to articles of food or clothing required to sustain life, or to preserve decency, but includes such articles of utility as are suitable to maintain her according to the estate and degree of her husband." Accordingly the court refused to say, as matter of law, that a gold chain and locket and a gold watch and chain were not necessaries, and evidence that the husband wore diamonds and kept a fast horse was held to be admissible.89 The question whether money lent
Ind. 375; Arnold v. Brandt, 16 Ind. App. 169, 44 N. E. 936; Scott v. Car-others, 17 Ind. App. 673, 47 N. E. 389; Thorpe v. Shapleigh, 67 Me. 235; Dolan v. Brooks, 168 Mass. 350, 353,. 47 N. E. 408; Prescott v. Webster, 175 Mass. 316, 56 N. E. S77.
84 Arnold v. Brandt, 16 Ind. App. 169, 44 N. E. 936; Presoott v. Webster, 175 Mass. 316, 56 N. E. 577.
85 Marshall v. Rutton, 8 T. R. 545.
86Hurd's Rev. Stat. 111 (1917), c. 68, Sec. 15; Iowa Code (1897), Sec.3168; Mo. Rev. St. (1909), Sec.8308; Lord's Oreg. Laws (1910), Sec. 7039.
87 Bentley v. Griffin, 5 Taunt. 356; Metcalfe v. Shaw, 3 Campb. 22; Shel-ton v. Pendleton, 18 Conn. 417; Taylor v. Shelton, 30 Conn. 122; Halle v. Einstein, 34 Fla. 589, 16 So. 554; Con-nerat v. Goldsmith, 6 Ga. 14; Dolan v.
Brooks, 168 Mass. 350, 47 N. E. 408; Bolthouse v. DeSpelder, 181 Mich. 153, 147 N. W. 589; Swett v. Penrice, 24 Miss. 416; Tattle v. Hoag, 46 Mo. 38, 2 Am. Rep. 481; Hill v. Goodrich, 46 N. H. 41; Stammers v. Macomb, 2 Wend. 454; Simmons v. McElwsin, 26 Barb. 420; Catron v. Warren, 1 Coldw. 358; Carter v. Howard, 39 Vt. 106; Zent v. Sullivan, 47 Wash. 315, 91 Pac. 1088.
88 Raynra v. Bennett, 114 Mass 424, 429.
89See further, Phillipson v. Hayter, L. R. 6 C. P. 38; Shelton v. Hoadley,-15 Conn. 535; Clark v. Cox, 32 Mich. 204; Sauter v. Scrutchfield, 28 Mo. App. 150. Under an Illinois statute a waist of Honiton lace, costing $200, was held a "family expense" for which a wife could pledge her husto the wife on the credit of her husband for the purchase of necessaries and which is, in fact, expended by her for necessaries can be recovered from the husband by the lender should be governed by the same principles previously discussed under the heading of infancy and insanity,90 but there is an additional circumstance in the case of husband and wife to which attention is not always directed. If the money is loaned on the credit of the wife there seems no possible ground for holding the husband liable. The English authorities have held broadly that the husband is not liable,91 and these cases have been followed to some extent in this country.92 In equity the husband, on the other hand, has been held liable.93 In the decisions both at law and in equity it does not seem generally to have been regarded as material whether the credit was in fact given by the lender to the husband. This seems, however, a vital point and the importance of it is brought out in a Massachusetts decision.94