Duncan v. Robertson , 58 Miss. 390 ( 1880 )

Campbell, J.,

delivered the opinion of the court.

This case presents two new questions, viz. : 1. Whether, under sect. 1780 of the Code of 1871, a wife who had a plantation operated for her account could, in reference to such operations, be treated and held to be engaged “ in trade or business as a feme sole,” in the contemplation of the section? 2. Whether, in an action at law against a wife and her husband, under sect. 1783 of the Code of 1871, on a contract made by her, not when ^engaged in trade or business as a feme sole, but as a married woman in a state of case provided for by law, it is essential to the validity of the judgment obtained that the declaration shall aver not only the existence of the conditions enabling the Avoman to make a valid contract, but the further fact that at the time of the institution of the action she continued to be the owner of separate property liable to the satisfaction of the demand.

We answer the question first stated in the negative. The provision that a married Avoman may employ her money in trade or business, and that “ Avhen a married woman engages in trade or business as a feme sole, she shall be bound by her contracts made in the course of such trade or business in the same manner as if she were unmarried,” contemplates trade or business other than that specifically regulated by the statute, and contracts distinct from those enumerated in it, as within her capacity as a feme covert. As a feme covert she may make certain contracts specified by the statute. As a feme sole employing her means in trade or business, she may, in the prosecution of that trade or business, contract as if she were not married. The contracts contemplated in her character as feme covert and feme sole are distinct things, and it is not admissible to annul the restriction of the statute as to the capacity of a married woman, acting in her prescribed sphere as such as marked by the statute, by treating her as a feme sole as to the contracts enumerated by the statute as those which she, as a married woman, may make. A married woman may make certain contracts enumerated in the statute. If she assumes the character of a feme sole, and thus prosecutes trade or business in which she may engage, she ceases to be regarded as a married woman as to contracts made in it.

Responding to the second question stated, we announce that the absence from the declaration on a contract made bjr a married woman, as such, of an allegation that she had separate property at the commencement of the action, does not render void a judgment against her in such action. A declaration which shows a valid contract is sufficient, without showing the existence of a state of things which may be necessary to enable the plaintiff to obtain satisfaction of such contract. We neither express nor intimate an opinion on the question whether a married woman, when sued on her contract, can escape a judgment by showing in defence her changed condition with respect to her separate property, as having none or only that acquired after the making of the contract sued on, and not the proceeds of what she had at the time of the contract. Whatever may be true as to that, if she would avail herself of that she must defend on that ground. The declaration must ■show a causo of action. A valid contract not performed is a good cause of action. If there is a sufficient reason for nonperformance, if there has supervened a reason why it may not be enforced, it must be pleaded as a bar.

Decree affirmed.