Dunbar v. Meyer, Deutch & Co. , 43 Miss. 679 ( 1871 )

Simrall, J.:

Suit was begun in the circuit court of Adams county, by Meyer, Deutch & Co., against William H. Dunbar and Sarah, his wife, to recover on an account for merchandise sold and delivered. The declaration in each of several counts charges the indebtedness, in substance, “ for divers goods, wares and merchandise sold to Sarah, the wife; for necessary apparel and necessaries for herself and children, and at her instance and request.” The case was submitted to the jury on the plea of non assumpsit by Dunbar and wife ; verdict for the plaintiffs.

The errors complained of by the plaintiffs in this court bring into question the sufficiency of the declaration, the decision of the circuit court in overruling the motion for a new trial. The verdict is said, 1st. To be excessive; 2d. Contrary to the instructions of the court; 3d. Against the law and evidence. The judgment is against Sarah M. Dunbar, and her sureties in the replevin bond. The instructions granted at the request of the plaintiffs in error, referred to the jury, very fully, the points arising on the testimony as to what was necessary, in order to prove the correctness of the account, and also to whom the credit was given. , There is nothing in the record to justify a disturbance of the verdict (if, indeed, a good cause of action is stated), for the testimony does reasonably well establish the substantive averments of the declaration.

The provisions of the statute conferring authority and fixing limitations on the powers of femes covert to contract, will be found in the fifth section, under the title “ Of the separate property of married women,” Rev. Code, 335, 336. All the subjects of contract embraced in articles 24 and 25 have reference to married women who have separate property, whether in the form of money, securities, lands, etc. Hence, for liabilities enumerated in the 25th article, “ satisfaction may be had out of her (wife’s) separate property; nor shall the husband be liable for debts contracted by her (wife) after marriage, if she hold' separate property under the act.” Art. 25. If the wife have “ separate property,” the husband is not liable for debts contracted by her. But if she have none, his responsibilities for her are as at common law, except as to her ante-nuptial debts. This subject was carefully considered in the case of Whitworth & Troup v. Davis G. Carter, adm’r, etc., (siopra page 61) on a review of the adjudged cases. And it was deduced from the decisions, that the act of 1839, and the subsequent amendments of 1846 and 1857, were enabling statutes, conferring power on the feme covert to make the engagements- therein enumerated. But for all contracts outside of the statutes she was under the common law disabilitju It is stated as a condition to her ability to contract within the purview of the statutes, that she must be the owner of separate estate.” It is not averred in the pleadings, nor was it brought out in the evidence, that Mrs. Dunbar was the “ owner of separate property.”

It was held in Hardin v. Pelan, 41 Miss. Rep., 114, that the plaintiff must set out in his pleadings the special considerations that authorize a married woman by our laws to make a binding contract. In that case the suit was on a promissory note, made by the husband and wife. The wife pleaded her coverture, to which there was a demurrer. The plea was sustained because the declaration did not show the special considerations, under the statute, that upheld the contract. The court say, however, that the plea might have been obviated by replying the special state of facts that would have brought the case within the statute. In some form or other, it must appear of record that all the necessary facts are present to make thé promise binding on the wife.

In this case it is neither averred in pleading nor proved that Mrs. Dunbar had a separate estate. In the absence of such averment and proof, an essential fact is wanting to support the judgment. Nor must the plaintiff necessarily have proved it in order to obtain a verdict. It was not by implication included in the issue. This was fully met by evidence that Sarah M. was the wife of W. H. Dunbar, and that the merchandise was bought by her, and was necessary to herself and children. In this condition of facts the liability was evidently on the husband. It is a principle of law growing-out of the marital relation, as a consequence of the obligations assumed by the husband upon marriage, that he shall supply the'wife with all necessaries convenient and suitable to their station in life. Chancellor v. Benjamin, 41 Barbour Rep., 558. The infancy of the husband is no discharge from these obligations, nor an answer to a claim for their fulfillment. Confine v. Philips, 5 Harrington (Del.) Rep., 428; Cole v. Seely, 25 Vt., Rep., 230. If the husband neglect to provide these necessaries, the wife may make the purchases; and though he may dissent, he shall nevertheless be liable therefor. Etherton v. Parrott, 1 Salk., 118 .The wife possesses no original inherent power to bind the husband, yet from the circumstance of cohabitation, and the goods being consumed in his family, the assent of the husband will be presumed. Ogden v. Prentice, 33 Barbour Rep., 164. Justice Story, in his treaty on Contracts, § 98, states, that if the husband omits to furnish the proper necessaries he impliedly makes his wife his agent to procure them for herself. According to many of the cases, cohabitation alone will supply the inference of this authority.

The issue tried was on the joint plea of the husband and wife. The jury found that the defendants, both of them, were indebted, as alleged. The judgment was that a recovery be had of Sarah M. Dunbar, and her sureties in the replevin bond, and that William H. Dunbar be not liable therefor.

We are of opinion that, upon the facts in tbe evidence, adduced on the trial, there may have been a liability on William H. Dunbar, the husband, to pay for these goods; but neither the pleadings nor the proof justified a judgment against Mrs. Dunbar. As we have seen, when the wife’s liability is fixed, “ satisfaction may be had out of her separate estate.”

It seems to have been taken for granted, by the counsel in the circuit court, that Mrs. Dunbar was the owner of separate property: or, perhaps counsel may have supposed the fact to be immaterial. On the return of the cause to the circuit court, leave should be granted the plaintiffs to amend their declaration in that behalf, if the truth be so, and application be made so to do.

Judgment reversed, and cause remanded for further proceedings, in accordance with this opinion.