Ignorance must not be the result of his own negligence or

bad faith.

(5) The other party must actually be induced to act relying

on the representation.

Any further discussion of the elements of estoppel would

be foreign to the purpose of this work. The application of

the doctrines will appear in subsequent chapters.^

1 Ewart on Estoppel, pp. 18-27, 28-67.

2 Post, в§в§ 102-116; в§в§ 149-157.

FORMATION OF AGENCY

CHAPTER Y.

FORMATION OF TIIK KELATION BY NECESSITY.

В§ 54. General doctrine of contracts from necessity.

Aside fruiu cuiitnicts which rest upon llic agreement of

the ]iai'tics there is a more or less clearly (.Icfined class of

legal relations in which obligations are enforced by contract-

ual remedies although in fact no contract by agreement

existed between the parties. These ai'c called "contracts

created by law," or "quasi-contracts."^ Such is the obliga-

tion of an infant to i)ay for necessaries, ^ of a man to return

money recei\'cd under mistake,'^ of a corporation to return

the benefits received under a contract nltra vires,'^ or of a man

to pay for benefits conferred uuder statutory authority.^ The

obligation where not a statutory one is created by the courts

on grounds of public policy to do justice between the ])ar(ies.

The principle of quasi-contractual obligation is aj)plied for

the ])urpose of creating an agency where otherwise there

would be none. Such agency generally arises from the nec-

essity of the particular situation.

В§ 55. Agency of wife.

The authority of a wife to pledge her husband's credit

may rest upon any one of three grounds, namely, actual

authority, ostensible authority, or necessity.

If there be actual authority there is simply the usual

agency by agreement heretofore discussed.

Ostensible authority in the case of a wife may arise fi'om

the fact of cohabitation. Where a husband and wife live

* Keener on Qiiasi-Contructs, Chap. I.

2 Trainer v. Trumbull, 111 Mass. 527.

8 Keener, Cliap. If.

* Central Tran.s. Co. v. Pullman Car Co., 1-30 U. S. 24.

6 Steamship Co. v. JoUffe, 2 Wall. (U. S.) 450.

BY NECESSITT. 73

together, there is a presunii)tioii that she is authorized to

pledge his credit for the ordinary and usual household pur-

chases.i But for purchases going beyond such as the man-

ager of a household might reasonably make, there is no

presumption of authority from tlie fact of the conjugal

relation alone ; authority, if any, must be sought in acts and

conduct on the part of the husband calculated to induce third

persons to believe that the wife has the added authority,

such, for example, as having without objection previously

recognized and paid for such i)urchases.2 In other words,

ostensible authority rests upon the same consideratit)ns here

as in any other case, except that the fact that the wife man-

ages the household raises a presumption of authority to make

the usual and ordinary purchases for it. Where they live

apart no such presumption arises.-^

Authority by necessity is an authority created by the law

as a result of the marital relation by virtue of which the

wife has power to pledge the husbands' credit in order to

obtain the necessaries which he has neglected or refused to

furnish.^ This may exist even where the husband has for-

bidden the wife to pledge his credit, or has notified third

persons not to supply her upon his credit,^ or where, with his

consent or in consequence of his fault, she is living apart from

him.^ There may be two theories on which this result is

reached, — (1) that the obligation of the husband is to pay

for the necessaries without regard to the question of agency,'

or (2) that there is a compulsory agency created by law

under which the wife's act is the husband's act.^ The first

1 Harrison v. Grady, 13 L. T. Rep. 369; Flymi u. Messenger, 28 Minu.

208.

2 Bergh v. Warner, 47 Minn. 250.

3 Viisler V. Cox, 53 N. J. L. 516; Johnston v. Sumner, 3 Ilurl. &

Nor. 261.

* Bergh v. Warner, 47 Minn. 250. ^ Ibid.

6 Jolmston u. Sumner, 3 llurl. & Nor. 261; Wilson v. Ford, L. R.

3 Ex. 63.

"> Keener on Quasi-Contracts, pp. 22. 23.

8 Benjamin v. Dockham, 131 Mass. 418 ; Johnston v. Sumner, 3 Ilurl.

& Nor. 201.

74 FORMATION OF AGENCY

theory finds color in the fact that the luishand must jtay

even if the wife be insane or unconscious, or even if the

husband bo insane.^ In any case the creditor must show that

the husband neg-lccted or refused to provide suitable suj)port,

and that the articles furnished were necessaries. What are

necessaries is a question of fact for the jury, cxce])t where

the court can positively declare that the articles are not

necessaries.^

В§ 56. Agency of infant child in purchase of necessaries.

Sonic of the American courts enforce the doctrine that a

father is liable for necessaries furnished his infant child

wiiere no actual authority is vested in the child to pledge the

father's credit. It is probably true that slighter evidence will

establish authority in such cases, than in cases where the

relation does not exist.^ But in some cases no evidence of

such authority exists at all, and hence the agency cannot rest

on assent. The English and some of the American courts

refuse to enforce any obligation under such circumstances,*

but some of our courts enforce it on the same theory as in the

case of the compulsory agency of the wife,^

В§ 57. Agency of shipmaster.

A shipmaster has authority in cases of necessity to purchase

supplies for the vessel and pledge the credit of the owner.^

This is analogous to the purchase of necessaries by a wife or

1 Read v. Legard, 6 Ex. 636 ; Cunningham v. Reardon, 98 Mass. 538,

cited by Keener on Quasi-Contracts, p. 22.

2 Davis V. Caldwell, 12 Cash. (Mass.) 512.

8 Clark V. Clark, 40 Conn. 586; Fowlkes v. Baker, 29 Texas, 135.

And see Schouler on Domestic Relations, В§ 241; Jordan r. AVright, 45

Ark. 237; Freeman r. Robinson, 38 N. J. L. 383.

•" xMortimore v. Wright, 6 M. & W. 482; Shelton v. Springett, 11 C. B.

452; Kelley i'. Davis, 49 N. H. 187; Gordon v. Potter, 17 Vt. 318; Free-

man V. Robinson, 38 N. J. L. 383; Carney v. Barrett, 4 Ore. 171.

6 Gilley v. Gilley, 79 Me. 292; Cromwell v. Benjamin, 41 Barb.

(N.y.) 558; Manning r. Wells, 8 Misc. (N. Y.) 646; Watkins v. De-

Armond, 89 Ind. 553. And see dictum in Dennis v. Clark, 2 Cash.

(Mass.) 317, 352.

В« McCready v. Thorn, 51 N.Y. 454.

BY NECESSITY. 75

child, in that the plaintiff in order to recover must show that

the supplies were in fact necessaries. Such authority may,

indeed, be thought to be conferred by the contract or assent

of the owner aided by custom, but it is closely analogous to

the compulsory agencies arising from necessity. So also the

[ shipmaster has authority to sell the cargo or even the vessel

\ itself in case of supreme necessity .^

В§ 58. Agency of unpaid vendor.

An unpaid vendor who is still in possession of the goods,

may re-sell the same as agent of the vendee and charge the