Husband and Wife. Agency. Evidence, Presumptions and burden of proof. Limitations, Statute of. Payment.
In an action by a physician for charges for services rendered to the wife and minor child of the defendant, where the evidence warrants a finding that the defendant had seen the plaintiff at the defendant's house and knew that the visits were made by the plaintiff as a physician in response to calls from the defendant's wife, and where there is no evidence that the defendant ever had forbidden the plaintiff to render or his wife or child in the plaintiff's presence to receive the services of the plaintiff on his account, the facts, that the defendant privately had instructed his wife never to run any bills and from time to time when she told him she needed it had given her money to pay all expenses, do not rebut the presumption of the agency of the wife, which is an inference from her relation to her husband as the manager of his household, to pledge her husband's credit for medical services that are reasonably necessary for her or the family, and therefore in such an action it is right for the presiding judge to refuse to rule at the request of the defendant "that the defendant was not liable to the plaintiff for this bill, even if it was for necessaries furnished to his wife and minor child, unless the defendant refused or failed or neglected to furnish them himself."
In an action by a physician on an account annexed for charges for services rendered to the wife and minor child of the defendant, where the defendant had pleaded the statute of limitations and the plaintiff's claim was barred by the statute unless a certain payment of $5, which was credited in the plaintiff's account, had been made to the plaintiff by or in behalf of the defendant at the date alleged, the plaintiff testified that "he had received a payment of $5" on the account at the time alleged, but he offered no evidence to prove that the payment was made by the defendant, by the defendant's wife or by any one who had authority to act for the defendant. Held, that there was no evidence on which the jury could find an acknowledgment on the part of the defendant of an existing liability at the time of the alleged payment of $5, and that they should have been instructed to that effect.
PIERCE, J.
It is not in dispute that the medical services for which the plaintiff seeks compensation were required by, and were rendered to, the wife and minor child of the defendant as alleged. The evidence warranted a finding that the defendant had seen the plaintiff at the defendant's house and that he knew the visits there were made by the plaintiff as a physician in response to calls from the wife of the defendant.
The defendant offered a receipt for $25, tending to prove that he had paid an account which included as its last item the first item for services in the plaintiff's account. There was evidence that the plaintiff had sent bills from time to time to the defendant's residence through the mail. There was no evidence that the defendant ever had forbidden the plaintiff to render, or the wife or child in the presence of the plaintiff to receive, the services of the plaintiff on his account. Alley v. Winn, 134 Mass. 77, 78. Dolan v. Brooks, 168 Mass. 350, 352. Debenham v. Mellon, 6 App. Cas. 24. Harrison v. Grady, 13 L. T. (N. S.) 369. Baker v. Carter, 83 Maine, 132. Auringer v. Cochrane, 225 Mass. 273. It follows that the charge in this regard was sufficiently favorable to the defendant and disposes of the exception of the defendant to the refusal to rule "that the defendant was not liable to the plaintiff for this bill, even if it was for necessaries furnished to his wife and minor child, unless the defendant refused or failed or neglected to furnish them himself."
Under these circumstances the presumption of the agency of the wife, which is inferred from her relation to her husband as manager of the household, to pledge her husband's credit for medical services that are reasonably necessary for her or the family, is not rebutted by proof that the defendant privately had instructed his wife never to run any bills and had given her money from time to time to pay all expenses when she told him she needed it.
In answer to the defence that the action is barred by the statute of limitations, the plaintiff testified "he had received a payment of $5" on the account in July, 1908. He offered no evidence to prove the payment was made by the defendant, by the wife of the defendant or by any one who had authority to act for the defendant. We are of opinion that this testimony went no further than proof of payment by a stranger and was insufficient as evidence for a jury to find an acknowledgment on the part of the defendant of a subsisting liability; and we think the jury should have been so instructed. Gillingham v. Brown, 178 Mass. 417. Butler v. Price, 115 Mass. 578. See Palethorp v. Furnish, 2 Esp. 511 n.
Exceptions sustained.