Foertsch v. Germuiller ( 1896 )

Mr. Justice Shepard

delivered the opinion of the Court:

1. A former judgment for the appellee, Julius Germuiller, who was plaintiff below, was reversed on appeal to this court because rendered upon a defective affidavit under the Seventy-third Rule of the Supreme Court of the District. 2 App. D. C. 340. Upon.a former trial the plaintiff again recovered judgment, and defendant has again appealed.

The suit is against a married woman to recover for services rendered in preparing plans, etc., for the erection of a block of houses on land that was her separate property under the statute.

2. The first assignment of error is on an exception taken to the refusal of the court to continue the case in order to secure the testimony of the defendant’s husband, who was then too ill to attend the trial. What his testimony would have been does not appear. It is well settled that the action of a trial court upon an application for continuance is not reviewable save in a case where a clear abuse of discretion is made to appear. Bradshaw v. Stott, 7 App. D. C. 276; Goldsby v. United States, 160 U. S. 70, 71. And the error might be dismissed from consideration under that rule. But as it is conceded that the trial justice overruled the application upon the ground of the husband’s incompetency as a witness for his wife, the exception will be entertained.

It is contended that the common law rule, that the husband and wife cannot be received as witnesses for or against each other, except in suits between them, or in criminal cases where one is prosecuted for injury to the other, has been abrogated by certain provisions of the Revised Statutes óf the District of Columbia, Secs. 876 and 877. In this view we do not concur.

Those sections had the same general purpose as the act of Congress (R. S., Sec. 858), which removed disqualifications on account of interest, and do not apply to the disqualification of husband and wife, that rests, not upon interest, but upon a distinct ground of public policy. Lucas v. Brooks, 18 Wall. 436, 453; Clark v. Krause, 2 Mackey, 559, 572; Burdette v. Burdette, 2 Mackey, 469; Beale v. Brown, 6 Mackey, 574, 576.

3. There was no error in permitting the plaintiff to offer in evidence the contract made between defendant’s husband and the builders of the houses on her land, though her name was not signed thereto.

Plaintiff had testified that he had been called on to make-the plans and specifications for the houses by defendant’s husband, with her consent and approval; aud that the same had been built according to his plans and under his supervision. He further testified that it had been agreed to pay him a certain commission on the total cost. The contract was introduced to show by its recitals that the work was to be done according to his plans and specifications and subject to his supervision, as well as to show the cost price upon which his commission was to be estimated. Defendant’s objection is vaguely stated, and seems founded on the assumption that this contract was offered to prove that which was sued upon, for she says that, not having been signed by the wife at all, it “ is inconsistent with plaintiff’s case.”

It was, however, a mere incidental fact in the case, and, as such, relevant to the verbal contract between plaintiff and defendant, for his services in the premises, which constitutes his cause of action.

4. The next assignment of error is founded on an alleged variance between certain allegations of the declaration and the proof offered in' their support. After describing the land of which defendant was seized and possessed as her separate estate by lot and block, the declaration averred that defendant acquired the same “ otherwise than by gift or conveyance from her husband, to wit, by devise under the will of Mary A. Fearson and by deed from William F. Mat-tingly, trustee, to her by her present name, Mary J. Foertsch.” Having been called as a witness, she said that she inherited the property from her uncle, Joseph N. Fearson. The objection was raised on a motion by the defendant for an instruction to the jury to return a verdict for her.

The material allegation in the declaration is that the defendant was seized and possessed of the property as her separate estate under the statute. The chain of title by which she was so seized and possessed was an immaterial allegation that could hardly have been traversed even had it not been alleged under a videlicet. 28 Am. & Eng. Encyc. L., p. 452. Consequently there was no error in refusing the instruction on that ground,

5. Several assignments of error, touching objections to the charge given the jury, have been argued, one of which only will be considered, because the others have no foundation in the bill of exceptions. It appears therefrom that the court gave the three special instructions that were prayed by the defendant, though they are not set out.

The plaintiff’s evidence tended to show that he had first prepared plans for four houses at the request of defendant and her husband. She did not like them and he made another set; that he made the contract for his charges with defendant’s husband in the presence of defendant; that he had been paid in part for his services, and that one payment had been made in a check signed by defendant, though most of them had been signed by her husband. Defendant, testifying on her own behalf, in support of a plea alleging hnproper construction, &c., said that $25,000 had been borrowed to build the houses for which she had given her notes secured by trust deed on her said land; and that the money had been deposited in bank to the credit of her husband who drew on it. She did not contradict the evidence of the plaintiff.

In the course of the general charge, the court gave the following, which was excepted to: “It was not necessary for her to say she would pay plaintiff. If she did not dissent to the contract made in her presence with her husband, the jury could infer it was made with him as her agent. If she allowed her husband to borrow money on her property to build with thereon, the presumption is he would be acting as her agent and so made the contract with plaintiff, and the defendant would be bound thereby.” The court then added the following: “ But this presumption was a rebut-table presumption. If defendant’s husband was acting on his own responsibility, and not with defendant’s consent, his contract would not be binding on her.” This charge was as favorable to the defendant as she could, with reason, have expected, and contains no error. Schaeffer v. Lehman, 2 MacA. 305.

6. The judgment entered on the verdict, after motions for new trial and in arrest had been overruled, is incorrect in form, in that it is a general personal judgment against defendant, as if she were an unmarried woman. The award of execution, instead of being general, should have been against her sole and separate estate so acquired and held under the statute regulating the rights of married women. R. S. D. C., Sec. 727, 730; Magruder v. Belt, 7 App. D. C 303; Bank v. Partee, 99 U. S. 325, 330.

This error in the judgment was not raised under the motion in arrest that preceded the entry; and should have been called to the attention of the court by motion to amend. Had that been done, no doubt the correction would have been made and defendant would not have been put to an appeal on that account.

We cannot agree that the judgment was void for want of the formal limitation in the award of execution, or that, presented in the way it has been, the error is sufficient to require a reversal with costs.

The judgment will therefore be modified so as to express the necessary limitation of execution, and, as so modified, affirmed, with costs to the appellee. The cause will be remanded to the court below that the judgment may be so modified and amended. It is so ordered.

Modified and affirmed.