Lewis v. Dillard & Jones , 66 Ala. 1 ( 1880 )

BRICKELL, C. J.

1. There was no error in the first instruction given to the jury. Taking a note or bill, of which a pre-existing indebtedness is the consideration, is not a satisfaction of such indebtedness, if it is ta.ken upon a condition the maker tails to perform ; nor, generally, unless there is an agreement that it shall operate as a payment. — 1 Brick. Dig. 287, §§ 501, eb seg. In Sharp v. Burns, 35 Ala. 664, it was held, that the liability of the wife’s statutory estate, for articles of comfort and support of the household, was not relieved, because the husband had been recognized as the debtor, was solvent, and had given a mortgage to secure payment. It was said, as has been often said, it is the combination of circumstances mentioned in the statute which fixes the liability of the estate; and it was added: “The husband is also liable personaliter ; and the fact that securities ¿ave been taken to make his liability effectual would no more relieve the wife’s separate estate from the charge upon it, than would the taking of similar steps in other cases where a creditor has distinct remedies.”

2. The second instruction is erroneous, in declaring that the authority of the wife to the husband, to make the purchase of goods of the plaintiffs, if they were suitable to the comfort and support of the household, and to the degree and condition in life of the family, would render her statutory estate liable to pay for them, though they were not used in the family. The authority of the wife to the husband, to make the purchases, is not, and can not become, an element of the liability of the statutory estate. The capacity of the wife to contract, as defined at common law, is not enlarged by statutory provisions creating and defining her separate estate, except in so far as, by joining with her husband in the execution of an instrument in writing, attested or acknowledged, a sale and conveyance of the estate is, made.—Canty v. Sanderford, 37 Ala. 91; Alexander v. Saulsbury, Ib. 375; Warfield v. Ravisies, 38 Ala. 518; Gibson v. Marquis, 29 Ala. 668. The agency of neither husband nor wife in contracting the account, or making the purchases, is at all material. Without the consent of either, or though either may dissent, the statutory estate becomes liable, when there is a combination of the facts mentioned in the statute. If these .facts do not coexist, the estate is not liable, though husband and wife jointly, or the one with the consent of the other, contract the debt.

3. In view of the evidence tending to show that the goods were purchased and used to supply laborers employed by the husband in cultivating the wife’s lands, and cutting and hauling wood therefrom for sale; and in view of the further fact that, on the face of the accounts, it is apparent that all the goods, though in their nature they may be generally articles of comfort and support of the household, could not 'have been intended to supply the wants of the family, the charge is also erroneous. The goods were purchased in such quantities, and the purchases are so near to each other in point of time, that there is an exclusion of any supposition that they were all necessary or intended for the uses of the family. The husband is trustee — is charged with the control and management, and entitled to the rents, incomes and profits, of the wife’s separate estate. He is without power by his contracts, as are trustees generally, to charge the trust estate. . Taking the rents and profits of the estate free from liability to account to the wife, it is natural equity that the corpus of the estate shall not be charged with the expenses incurred in the production of the rents and profits. All such expenses are the personal debts of the husband, and from liability to pay them the wife’s estate is exempt. The only debt of the husband, for which the estate of the wife can be made liable, is that expressed in the statute. — Code of 1876, § 2711. To the Creation of that debt, there must be a concurrence of every fact mentioned in the statute. The articles purchased must be “ of comfort and support of the household, suitable to the degree and condition in life of the family, and. for which the husband would be responsible at common law.” Each and all of these facts must concur, and where there is not a concurrence of them, the statutory liability of the wife’s estate does not exist.— Durden v. McWilliams, 31 Ala. 438; Punch v. Walker, 34 Ala. 494; Eskridge v. Ditmars, 51 Ala. 245; O’Connor v. Chamberlain, 59 Ala. 431.

4. In all actions of account, if the correctness of the account is put in issue by the pleadings, the burden of proof lies upon the plaintiff. If the correctness of the account is not shown, the case of the plaintiff fails. "When, in an account against the husband, there is a commingling of charges for some of which the statutory estate of the wife may be liable, and for others there may be no liability, the burden of proof rests upon the plaintiff, to show the items of the account for which the statutory estate is íiable; and if he does not by evidence distinguish them, there is a want of evidence to establish the liability. If an account is presented to a party sought to be charged with its payment, and he admits that it is in part correct, not designating or distinguishing the part, the admission, because of its uncertainty, is of no value. Watson v. Byers, 6 Ala. 393; Boxley v. Gayle, 19 Ala. 151. When there is a commingling, in an account, of items for which the statutory estate of the wife is liable, with items for which it is not liable, it' is the duty of the party seeking to charge the estate, by evidence to show which of the items are chargeable on it. If he fails, he does not meet the burden of proof resting upon him, and a jury cannot solve the doubt and uncertainty to which the case is reduced. The first and third instructions requested by tbe appellant should have been given.

5. When payments are made by the husband upon such an account, whether from his individual means, or from the income of the wife’s estate, the rule for their application is laid down clearly in Lee v. Tannebaum, 62 Ala. 501.

Reversed and remanded.