McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
The plaintiff, a merchant, prosecuted this action against the defendants, Edwin Sweeten and Amy Sweeten, husband and wife, to recover from them or one of them the reasonable value of certain alleged necessaries supplied by the plaintiff to Mrs. Sweeten. A judgment was rendered by the Gloucester County District Court Judge imposing the sole liability for the payment of the account upon the husband, Edwin Sweeten. The legal propriety of the judgment constitutes the subject matter of the present appeal.
There is no intimation in the certified statement of the evidence here submitted (Rules 1:2-23 and 4:2-6) that the husband personally purchased the articles or expressly authorized their sale to his wife on his credit.
It may be stated to be the broad general rule that the relation of principal and agent is not inherent in the marital relation. While marriage may be a relevant circumstance, it is the general principle that the wife is the agent of her husband only by virtue of his authority expressly conferred or reasonably to be implied from the circumstances. There are in the law instances of apparent or ostensible authority
which more commonly have the characteristic features of estoppel and the somewhat unique exemplifications of an agency or kindred relationship rather artificially created by implication of law. Barber v. Hochstrasser , 136 N.J.L. 76 (Sup. Ct. 1947).
The civil and common law levied an obligation upon every husband to support his wife. Public policy and the general welfare required the imposition of that responsibility. Coincidental in the recognition and enforcement of that duty, the law originated that which Anson in his work on Contracts and Schouler in his treatise on Husband and Wife have regarded as an "agency from necessity."
"Circumstances operating upon the conduct of the parties may create in certain cases agency from necessity. * * * A husband is bound to maintain his wife; if therefore he wrongfully leave her without means of subsistence she becomes 'an agent of necessity to supply her wants upon his credit' * * *. In all these cases the legal relations between principal and agent do not arise from agreement; they are imposed by law on the parties without their consent in order to promote general welfare." Anson, Principles of the Law of Contracts (1919), § 444.
And so, where husband and wife are living together the law generates the presumption in favor of implied authority in the wife "to pledge her husband's credit for such articles as fall within the domestic department ordinarily confided to her management, and for articles furnished to her for her personal use suitable to the style in which the husband chooses to live." Vusler v. Cox , 53 N.J.L. 516 (Sup. Ct. 1891); Wilson v. Herbert , 41 N.J.L. 454 (Sup. Ct. 1879).
Where the husband and wife are not cohabiting, the presumption of such implied authority does not exist and the creditor in order to establish the liability of the husband for the purchases of necessaries by the wife must affirmatively prove that the parties were then living in a state of separation by mutual consent, without any provision for the maintenance
of the wife or means of her own for her support, or that the wife separated from her husband under the stress of his misconduct of such a character as in law is regarded as a justifiable cause. Vusler v. Cox, supra; Kelner v. Lee , 1 N.J. Super. 193 (App. Div. 1949); St. Mary's Hospital v. Paxton , 10 N.J. Misc. 514 (Sup. Ct. 1932). In the one or the other set of such circumstances the law restores the presumption of the implied agency. Strawbridge & Clothier v. Sigle , 73 N.J.L. 419 (Sup. Ct. 1906).
An appreciation of how closely the wife's implied authority is attached to the duty of the husband to support her is exemplified by the observations of Chief Justice Gummere imparted in the decision rendered in McCreery & Co. v. Martin , 84 N.J.L. 626 (E. & A. 1913): "This duty which the law imposes upon the husband, and which he must discharge to the extent of his ability, is satisfied by a single performance. In other words, having once performed it, the law does not impose upon him the obligation of duplicating that performance. When he has supplied his wife with those necessaries which their station in life and his financial standing entitle her to have at his hands, or has furnished her with moneys sufficient to enable her to purchase them for herself, he is under no obligation to pay bills incurred by her for what would have been necessaries if he had not already supplied her therewith, but which are not, in fact, such, because of the precedent supply. The husband may permit such extravagance on the part ...