McQuay v. McQuay , 86 Mont. 535 ( 1930 )

The original complaint in this action contained an allegation that the husband and wife were not living together as such at the time she sustained injuries resulting in the necessity of receiving medical attention. That complaint apparently was attempted to be drawn under section 5801, Revised Codes 1921. It failed to allege the reason why they were not living together, and it did not allege that they were living separate and apart by virtue of an agreement stipulating for her support. The amended complaint, however, is treated by the parties and by the majority opinion as one seeking recovery under section 5800. This section provides: "If the husband neglect to make adequate provision for the support of his wife, except in the cases mentioned in the next section, any other person may in good faith supply her with articles necessary for her support and recover the reasonable value thereof from her husband."

The precise question presented is: Is the cause of action one "upon a contract, express or implied, for the direct payment of money," justifying an attachment under section 9256, Revised Codes 1921?

It should be kept in mind that this is not an action by the wife against the husband to compel the discharge of the obligation of support. The plaintiffs here are assignees of the persons furnishing the necessities; they stand in the shoes of those furnishing the articles for the wife's support. Were the action one by the wife to compel performance of the duty of support, it might even then be doubted whether the obligation is one arising from contract, express or implied, for the direct payment of money.

In 30 C.J. 517, it is said: "The duty of the husband to support the wife is not dependent upon contract." The court of chancery of New Jersey, in Boehm v. Boehm, 88 N.J. Eq. 74,101 A. 423, 424, declared that "the duty of a husband to support his wife is not a duty dependent upon contract; that duty flows from the matrimonial status." The nature of the obligation is well stated in Fisher v. Drew, 247 Mass. 178, 30 A.L.R. 798, 141 N.E. 875, 876, as follows: "His liability is based on the obligation to fulfill `what law and duty require him to do, and which he neglects or refuses to do for himself.' (Cunningham v. Reardon, 98 Mass. 538, 539, 96 Am. Dec. 670;Raynes v. Bennett, 114 Mass. 424; Vaughan v. Mansfield,229 Mass. 352, 118 N.E. 652. See McCreery v. Martin,84 N.J.L. 626, Ann. Cas. 1915A, 4, 47 L.R.A. (n.s.) 279, 87 A. 433.) The authority has been said to create a `compulsory agency.' (Benjamin v. Dockham, 134 Mass. 418.) The husband is bound `even against his will' and his `consent is conclusively implied.' (Alley v. Winn, 134 Mass. 77, 79, 45 Am. Rep. 297.) Generally the power exists only in cases of necessity. The obligation is one imposed by law and exists even if a husband has no full contractual capacity, as where he is a minor or insane. (Butler v. Breck, 7 Met. (Mass.) 164, 39 Am. Dec. 768; Jordan MarshCo. v. Hedtler, 238 Mass. 43, 130 N.E. 78; New York TrustCo. v. Brewster, 241 Mass. 155, 160, 134 N.E. 616; Read v.Legard, 6 Exch. 636.) The one who seeks relief commonly must show either an express contract or facts creating a liability by implication of law."

In Goelitz Co. v. Industrial Board of Illinois, 178 Ill. 164,115 N.E. 855, 858, it is said: "The duty to support his wife is imposed by law on the husband." The obligation, it has been held, is not a debt, because it does not arise by contract, express or implied. The supreme court of Pennsylvania, in ReMoorehead's Estate, 289 Pa. 542, 52 A.L.R. 1251, 137 A. 802,806, in speaking of this, said: "These are accordingly primal obligations under the marriage relation imposed immemorially upon the husband, and which do not fall within the range of the nature or the meaning of a debt. Every debt of course is an obligation, but every obligation is not a debt. (Sonnesyn v. Akin,12 N.D. 227, 97 N.W. 557.) A debt is a sum of money due by contract, express or implied. But a tax is not a debt. It is not founded upon contract. It does not establish the relation of debtor and creditor between the taxpayer and the state. (Perry v.Washburn, 20 Cal. 318.) When an alien secures citizenship it becomes his duty to support and protect the commonwealth as far as possible. But he has made no contract to that effect. Similarly the duty of a husband to provide for and protect his family becomes a duty upon his marriage, a fundamental duty, not a debt."

But whatever may be the nature of the obligation as between the wife and her husband, that question is not involved here. This is an action by the assignees of the persons who furnished the necessities. The question here presented is this: Is the obligation of the husband to third persons who have furnished necessaries for the wife one on contract, express or implied, for the direct payment of money?

Here the complaint is not predicated upon a contract made with the husband. Neither is recovery sought by reason of any agency of the wife, either actual or ostensible. The person furnishing the supplies, in order to have any standing in court, must point to the statute fixing the liability. The statutes were intended by the legislature to cover the whole subject of the rights, duties and obligations of the husband and wife and to supplant all rules theretofore in force on the subject. (Grimstad v.Johnson, 61 Mont. 18, 25 A.L.R. 351, 201 P. 314.) The third person furnishing the necessities must of necessity, under the facts here, base his right to recover the reasonable value upon the statute. As said in Fitzmaurice v. Buck, 77 Conn. 390,59 A. 415, 416, "the action is plainly one brought under the statute. The complaint is inappropriate to any other cause of action."

A case possessing similar features is that of Wilson v.Harvey, 52 How. Pr. (N.Y.) 126, where the court held that the liability of children to support their indigent parents imposed by statute was not an obligation arising on "contract, express or implied," for which an attachment would lie, but that the liability rested "wholly upon the statute."

But it is asserted in the majority opinion that the statute merely makes the wife the agent of her husband for the purpose of binding him for the necessities of life. If this is the proper effect to be given to the statute, I am unable to see how it aids the plaintiffs' case. The agency, if such it be, is one created by statute, and any obligation incurred by or arising out of such an agency would, in my opinion, still be an obligation imposed by law. But to construe section 5800 as creating an agency is altogether too narrow a construction to be placed upon the words used by the legislature. The statute makes no reference to an agency. It makes the husband liable to the third person regardless of the consent of either husband or wife. To illustrate: If the wife is mentally incompetent or sustains an injury rendering her unconscious, she is then unable to contract either for herself or as the agent of her husband, and yet it cannot be said that the husband would not be liable for medical attention and other necessities furnished to her by third persons, if the other conditions named in the statute existed. The conclusion is inescapable that the person furnishing the necessities must base his cause of action against the husband, under the circumstances here presented, upon the statute. This being the case, the obligation is one imposed by law and not by "contract, express or implied, for the direct payment of money. In Butler v. Peters, 62 Mont. 381, 26 A.L.R. 560, 205 P. 247, 249, which was an action against a director of a corporation to recover an indebtedness incurred by the corporation while he was such director, and in which liability was sought to be fixed against him by reason of his failure to file the annual report required by law, Mr. Justice Holloway, speaking for the court, said: "He is required to respond, not because he agreed to do so, but solely because the statute imposes upon him the duty to pay, and when the law imposes such a duty it is idle to say that a contract to pay is implied." In that case the following statement from 1 Page on Contracts, section 12, was quoted with approval; "A liability imposed by statute and not assumed by the voluntary agreement of the parties is not a contract, even if it is a liability on which the action of debt could have been maintained at common law." In conclusion, the court in the Butler Case said: "It is the general rule that, whenever defendant's liability to plaintiff arises purely from statute, it is not regarded as a demand on which an attachment will issue under statutes such as our sections 9256, 9257, above (6 C.J. 88)."

But if by any possible construction of the statute it may be held to impose a contractual obligation, still it is not one on which an attachment may issue. This court has held that the contract for the direct payment of money, in order to justify an attachment, must be an unconditional one. (Gilna v. Barker,78 Mont. 343, 254 P. 169; Square Butte State Bank v.Ballard, 64 Mont. 554, 210 P. 889.) Here the obligation of the husband to third persons furnishing necessaries for the wife is subject to the following conditions: First, that the husband has neglected to make adequate provision for the support of his wife; second, that the person supplying the articles necessary for the support of the wife must have done so in good faith; third, that the wife has not abandoned her husband, or, if so, that she has either offered to return or was justified in abandoning him because of his misconduct; fourth, that they were not living separate and apart by agreement, or, if so, that the agreement stipulated for her support. (Secs. 5800, 5801, Rev. Codes 1921.)

In my opinion, the cause of action here involved is not on a "contract, express or implied, for the direct payment of money," and that an attachment will not lie. There seems to be no good reason why such obligations should not be made attachable, but that is a question which addresses itself to the legislature and not to the courts.

The motion to discharge the attachment should have been sustained.