Wirt v. Dinan , 44 Mo. App. 583 ( 1891 )

Smith, P. J.

This was an action to recover damages for deceit. The petition stated that the said defendants are now, and were at the times hereinafter mentioned, married and living together as husband and wife; that said defendant, Anna Dinan, without the knowledge or consent, and in the absence, of her said husband, did, on or about the thirty-first day of August, 1888, for the purpose and with the intent at the time of cheating, wronging and defrauding plaintiff and of obtaining money and property from him, at the county of Bates and state of Missouri, unlawfully, wilfully and feloniously take, steal and carry away from one August Schuman twenty-eight head of cattle, the personal property of said August Schuman, of the value of $550 ; that after wards, in pursuance of said fraudulent design to cheat, wrong and defraud plaintiff, and to obtain money and property from him under false pretenses, the said Anna Dinan, in the absence of and without the knowledge of her husband, did take twenty-six head of said cattle to the farm of plaintiff in the county of Cass, and state of Missouri, and did then and there falsely, fraudulently and feloniously represent to plaintiff that she was at the time a poor unmarried woman of the name of Maggie O’ Grady, and a widow whose husband was dead, and who was traveling to the northern part of said state to see her relatives ; that the said twenty-six head of cattle were her property and all her property she had, and that she was greatly in need of money, and asked and solicited plaintiff to purchase said cattle from her in order that she might be enabled to continue her said journey; that each and all of said representations and statements were untrue and false and were by said defendant known to be false, and were made by her knowingly and wilfully for the fraudulent purpose of obtaining money from plaintiff; that plaintiff, relying upon said false and fraudulent representations and statements and believing them to be true, did purchase the said cattle and pay to the said Anna Dinan the sum of $498.90 in cash, whereby the said Anna Dinan did obtain from plaintiff the said sum of $498.90 by means of the false statements and conduct, and the fraudulent representations aforesaid ; that afterwards the said August Schuman on the twenty-second day of October, 1888, being the owner of said cattle as aforesaid, did reclaim the same and take them from the possession of the plaintiff, wherefore the said defendant, Anna Dinan, has obtained and received from plaintiff, by reason of her false and fraudulent conduct and statements aforesaid, the sum of $498.90, to his damage in the said sum of $498.90, and for which plaintiff prays judgment against defendants, and for his costs and for all proper relief.

The defendants interposed a demurrer to the petition on the ground mainly, it “ showed on its face that the plaintiff ’ s alleged cause of action grew out of a contract between plaintiff and defendant, Anna Dinan, who was shown to be a married woman, whose contract was void, and from which no cause of action could arise in favor of the plaintiff and against defendants oreither of them.” The demurrer was sustained; the plaintiff refusing to further plead, final judgment was rendered therein. The plaintiff brings the case here by appeal.

I. The single and decisive question which we are obliged to decide in this case is whether the defendants, who are husband and wife, are liable to the plaintiff for the fraud and deceit of the wife. It is a very well-established rule of the common law that the husband and wife are liable for the wife’s torts. Munter v. Bande, 1 Mo. App. 484; Alexander v. Lydick, 80 Mo. 341; Cooley on Torts, 115 ; Daily v. Houston, 58 Mo. 361; Schouler Dom. Rel. 102, 103. A wife is liable for her batteries, slanders, trespasses, frauds and other torts in respect of which she may be sued jointly with her husband. 2 Bishop on Mar. Worn., secs. 225, 256. The various acts which constitute torts may be classed as injuries to person, property or reputation. But more particularly under the head of deceit, slander and libel, conspiracy, assault and battery, trespass, conversion, etc. 2 Bouvier Law Dic., Tort. 737. Since a feme covert can commit crime she should seem a fortiori to be responsible for her civil torts, there being a difference, it is perceived, between the torts and her contracts. Her husband is liable with her. 1 Bishop on Mar. Worn., sec. 43. The common-law rule of liability of the husband and wife for the torts of the wife is not of universal application. For that reason the only torts of the wife, for which she and her husband were liable to be sued jointly, were known as torts simplioiter, unmixed with any element of contract. Merrill v. St. Louis, 12 Mo. App. 466 ; Keene v. Hartman, 48 Pa. St. 497 ; Woodward v. Banes, 48 Vt. 336; Liverpool Adelphi Loan Ass’n v. Fairhurst, 9 Exch. 420 ; 2 Bishop on Mar. Worn., sec. 256. Admitting the general liability of the husband and wife for the wife’s torts, it was said by Pollack, C. B.,in Adelphi Loan Ass’n v. Fairhurst, supra: “But when the fraud is directly connected with the contract of the wife and is the means of effecting it and part of the same transaction, the wife cannot be responsible, and tlie husband be sued for it together with the wife.” We have other cases to the point that an action may be in form as for tort, yet, if the subject of it be based upon a contract, there can be no recovery where the action on the contract would directly fail, and this, whether the defendant were an infant or adult. Keene v. Hartman, 58 Pa. St. 497. And it is not believed that this rule would be affected by any statutory provision respecting the rights of married women. It may be that the wife since the enactment of the general married woman’s property statutes can bind herself upon her implied warranty of title to any separate statutory personal property sold by her, and that an action could be maintained against her for a breach thereof, yet it is not believed that the liability of the husband and wife for the torts of the wife is affected by these statutes. McElfish v. Keekendall, 36 Ia. 224 ; Ferguson v. Brooks, 67 Me. 251; Kowing v. Morely, 57 Barb. (N. Y.) 479; McQueen v. Feelyham, 27 Tex. 463.

The authorities, so far as we have been able to see, are all agreed that the husband and wife are jointly liable for the fraud or deceit practised by the wife when damage results. But this rule is subject to the exception that, if the deceit is connected with the contract, it is otherwise. Now, it is quite obvious that this exception abrogates the rule itself. It is well. settled that the action of deceit is always connected with the contract. Barnes v. McMullins, 78 Mo. 260 ; Bullock v. Wooldridge, 42 Mo. App. 356; 2 Hilliard on Torts [2 Ed.] 73. And the same is true when the tort is a fraud. Prom its very nature it can only exist in connection with some form of contract. 2 Hilliard on Torts [2 Ed.] 141. So it must unevitably follow that as the husband and wife are not liable for the fraud or deceit of the wife when connected with a contract that they are not liable at all for her fraud or deceit, since there can be no actionable fraud or deceit except when connected with contract. In other words she may, at pleasure, indulge in any kind of fraudulent and deceitful practice resulting in damage to others, and yet for the wrong she cannot be sued herself alone because feme covert, nor jointly with her husband, for the reason that her tort is inseparably connected with a contract. The rule on the subject, therefore, may be stated to be this: That the husband and wife are liable for the fraud and deceit of the wife, unless such fraud and deceit are connected with a contract, and, as every action for fraud or deceit is connected with contract, they are not liable at all for her fraud or deceit in any case.

The rule itself is clear, explicit and well understood, but may it not be that the exception, as we have stated it to be, is entirely too broad and sweeping? And may it not be that the exception, with its proper qualification, is not repugnant to the rule ? The function of the exception is to limit or restrain the scope and operation of the rule, and. not to destroy it. It would seem that the exception should be such as to give it effect without rendering it wholly inoperative. With the view of accomplishing this it is worth while to widen the range of our inquiry.

The proposition is undeniably true that, wherever a married woman could plead coverture because the action is based upon a contract instead of a tort, a minor could under similar circumstances plead infancy. In Kent’s Commentary, at page 149, note 1, it is stated: “The question of liability in action for torts, where it is more or less nearly connected with contracts, is similar in the case of married women and of infants.” - Judge Cooley in his work on torts, page 116, in the discussion of the liability of married women for their torts, says: “ But the element of contract is as important here as in the law of infancy.” The reasons which would preclude theindirect redress of the infant’s breach of contract by treating it as a tort will preclude the like redress in the case of a married woman. It is stated in Bacon’s Abridgment, Infancy & Age, 1, 3, that, “If an infant without any contract wilfully takes away the goods of another, trover lies against him.” And it is also said that if he takest he goods under the pretense that he is of full age trover lies, because it is wilful and fraudulent trespass. So if a man affirms himself of full age when he is an infant, and thereby procures money tobe lent to him on mortgage, he is liable for deceit. 1 Sid. 183 ; Com. Dig. Actions, etc., 10. And there is no sound reason why an infant should not be chargeable in damages for a fraudulent misrepresentation, whereby another receives damages. Fetts v. Hall, 9 N. H. 441. In the last cited case it was stated: But the representation * * * in the present case, that the defendant was of full age, was not part of the contract, nor did it grow out of the contract, nor in any way result from it. It is not any part of its terms, nor was it the consideration upon which the contract was founded. No contract was made about the defendant’s age. The sale of the goods was not a consideration for this affirmation or representation. The representation was not a foundation for or of assumpsit. The matter arises purely ex delicto.

The fraud was intended to induce, and did induce, the plaintiff to make a contract for the sale of the hats ; but that by no means makes it a part and parcel of the contract. It was antecedent to the contract, and if an infant is liable for a positive wrong connected with a contract, but arising after the contract has been made ( Vasse v. Smith, 6 Cranch, 231; Homer v. Thwing, 3 Pick. 492 ; 1 Esp. Rep. 172; Bristow v. Eastman, Peake’s Rep. (S. C.) 222), he may well be answerable for one committed before the contract was entered into, although it may have led to the contract. * * * An infant may be bound in equity by a contract which the other party has been induced to enter into by its fraudulent representation or concealment,” citing Lord v. Flynham & Webb, 2 Ves. Sen. 212 ; Envoy v. Nicholas Brown, Chan. Rep. 358 ; Fonblanque’s Eq. [Am. Ed.] 30, note 2. “At law he is not bound by the contract, although it was procured by his fraudulent representation that he was of full age. If in equity, the infant may be bound by the contract, because of his fraud in procuring it, he may well at law be answerable for the previous deceit through which it was procured, if he thereby obtained property of another and refuses performance on his part.” This decision is pronounced by the editors of American Leading Cases, in their notes to Tucker v. Moreland, volume 1, to be clearly unsound. It was disapproved in Gibson v. Spear, 38 Vt. 311. But approved by Judge Redfield, in Town v. Wiley, 28 Vt. 359, also in Eckstein v. Frank, 1 Daily, 334. Mr. Justice Cooley in his work on torts, page 110, note 3, remarks that “with deference-it may be suggested whether, when a party has never intended to rely upon the contract of an infant, or to have any contract dealings at all with one, justice to him and protection to the infant does not require that the fraud shall be dealt with in like manner as would any other distinct tortious act.” Instead of the case of Prescott v. Norris, 32 N. H. 101, overruling Fitz v. Hall, as the defendant supposes, it is cited with approval. In 1 Parsons on Contracts, 317, it is said : “ But when the tort, though connected by circumstances with the contract, is still distinguishable from it, there he is liable. As, if he hires a horse for an unnecessary ride, he is not liable for the hire, but, if in the course of the ride he wilfully abuses and injures the horse, he is liable for the tort. And, if he should sell the horse, trover would lie, nor would his infancy be a good defense. Nor need his tort be subsequent to the contract. Thus in case a bond given by an infant and received by the obligee, in reliance upon his false and fraudulent representations of his being of full age, the bond cannot be enforced, against him. But as soon as the infant makes and. delivers it he is guilty of fraud, for which an action may be maintained for the loss sustained. And this statement of the law finds support in the adjudicated cases. Homer v. Thwing, supra; Badger v. Phinney, 15 Miss. 359; Kilgore v. Jordan, 17 Tex. 341; Walker v. Davis, 1 Gray, 506; Eckstein v. Frank, 1 Daily, 334 ; Peigne v. Sutcliff, 4 McCord ( S. C.) 216. In Story on Contracts, section 556, it is stated, “ that, if the infant had been guilty of positive fraud and thereby imposed upon the other party to his injury, he cannot set up his infancy as a defense to the action for the consideration, although the matter be in contract; for by his fraud he has put himself out of the pale of his privilege, and is responsible the same as if he were an adult.” In Eckstein v. Frank, supra, it was said that, “ when an infant obtains property by falsely representing himself to be of full age, an action of tort maybe maintained against him, either to recover it back or to recover damages, upon the ground that he obtained it wrongfully.” “If an infant is old and cunning enough,” says Lord Chancellor Cooper, “to contrive and carry out a fraud he ought to make satisfaction for it (2 Eq. Ca. Ab. 515), and the good sense and justice of requiring him to do so has been held in numerous cases cited to be applicaable in a court of law as in a court of equity.” The supreme court of Indiana in Rice v. Boyer, 7 W. Rep. 68, which was a case where a minor by falsely and fraudulently representing that he was twenty-one years of age induced a person, who relied upon such representations, to sell him certain personal property, the minor made away with the property and repudiated the contract, refusing to pay his note for the purchase price, etc. Say, inter alia, that, although the minor’s “fraud had enabled him to secure and make way with the property of one who had trusted in his good faith to his representations and had exercised due care and diligence, we are unwilling to sanction any rule which will enable an infant, who has obtained property of another by falsely and fraudulently representing himself to be of full age, to enjoy the fruits of his fraud, either by keeping the property or selling it to another, and, when asked to pay its just and reasonable value, successfully pleaded his infancy, — both a shield and a sword, — and this is the result which the principles of justice forbid ; for they require that it should tie merely a shield of defense.”

In the case of Wheeler & Wilson Mfg. Co. v. Heil, 7 Cent. Rep. (Pa.) 179, the defendant, a married woman, entered into a written contract with plaintiffs, by the terms of which the latter delivered to her one of their sewing machines for a certain specified rent, and for a certain specified time, at the end of which it should be returned to plaintiff. Defendant got possession of the machine under this contract, and at the expiration of the time refused to surrender it. Plaintiff then sued defendant and her husband for damages based upon the tort of the wife in converting the property to her own use. The lower court compelled the plaintiff to take a nonsuit, on the ground that the suit was based upon the written contract of the married woman which was void. The supreme court reversed the judgment, and held that, when the remedy for the tort is only for damages by suit, the husband is liable, with the wife, citing 2 Kent. Com. 149; Franklin’ s Appeal, 4 Cent. Rep. 322. In the last cited case it was held that when a tort is committed by the wife she is personally liable unless her husband was both present and directed the doing of it at the time. This was a case where the wife had tortiously converted to her own use certain securities which had been intrusted to her.

The rulings of the English cases are not in line with many of the American decisions to which we have referred. L. A. L. Ass’n’ v. Fairhurst, 9 Exch. 422; Wright v. Leonard, 11 Com. Bench, 257; Capel v. Powell, 17 Con. Bench, 743. It must be admitted that the course of decision even in this country is by no means uniform in respect to the question we are considering. Authorities of great respectability have been cited which are at variance in their statement of the law with many of those referred to and relied on by us.. It would be utterly impossible to reconcile the various conflicting and inharmonious judicial utterances on this question. We must be guided in our decision by those authorities announcing principles applicable to the case, which most commend themselves to our approving judgment as being consonant with right and justice. Prom these authorities we conclude that the broadness of what we'have termed the exception to the general rule of liability of the husband and wife for the deceit of the wife, when damages result, is subject to these qualifications; that is to say, first, that where the wife by false and fraudulent representations obtains property and retains it, if a recovery can be had without giving effect to the contract in a joint action against her and her husband to recover the loss actually sustained for her tort, her disability of coverture cannot be successfully pleaded in bar of the action; and, second, that the disability cannot be invoked as a defense in those cases where the false and fraudulent representations which induced the making of the contract and not a part of it, though connected with it, are antecedent to it. With these qualifications the exception can stand without being repugnant to the general rule of liability of the husband and wife.

In the case at ba,r the wife, who was in the possession of the fruits of her own larceny, went to the defendant, a stranger, and falsely and fraudulently represented herself to be a widow and the owner of the stolen property. She offered to sell him the property. He was induced to purchase by reason of her fraudulent representations. Certainly, had it not been for these he would not have made the purchase. Had she stated herself to be a married woman, and that the property was stolen by her, it is clear he would not have entertained any proposition to sell. It was these representations that led np to the sale. They were antecedent to it, and, though connected with it, were not a part of it. It was by the means of these snares that the plaintiff was entrapped and deceived. The foundation of the plaintiff’s action is these false and fraudulent affirmations. They preceded the transaction of the sale and the damage. This action is not on the wife’s implied warranty. It is not to give effect to the contract directly or indirectly. It is for fraud to recover the money paid for the stolen property. It proceeds from the theory that the contract is void ; that it is as if it had never been. It is in form ex delicto and not ex contractu. It is for a tort of the wife, as the form of it clearly indicates. According to the rule of liability of the husband and wife for the tort of the wife as we have stated it to be, we must conclude that the petition states a cause of action against the defendants.

Ellison and Gill, JJ., believing the petition states a cause of action, concur in the result. The judgment will, therefore, be reversed and the cause remanded.

ON MOTION TO MODIFY OPINION.

Smith, P. J.

The ground of the attachment and the cause of action stated in the petition are identical. The latter we have held to be sufficient, and it results from the very clearest implication that the former is also sufficient. As the undoubted effect of the ruling upon the petition is, to declare the ground of the attachment legally sufficient, we had not supposed that matter any longer open to question. The ground of attachment, and the cause of action stated, are so connected and related that the determination of the one to be sufficient is inevitably a like determination of the other.

But it has been suggested that the propriety of the action of the trial court in quashing the writ of attachment is not the subject of review on the appeal in this case. From the interlocutory judgment of the court quashing the writ of attachment, the plaintiff appealed, which appeal we dismissed, on the ground that from such a judgment appeal would not lie. Wirt v. Dinan, 41 Mo. App. 236. The plaintiff npw prosecuted his second appeal from the final judgment on the merits, the record of the cause before us presenting an exception to the ruling of the court in quashing the attachment. Does the appeal bring up for our considation the ruling of the trial court upon the motion to quash the writ of attachment? An appeal from the final judgment in a case brings up for review the intermediate rulings of the court, which have been duly excepted to, and not otherwise waived. Miller’s Plead. & Prac. 704.

The plaintiff’s attachment was dissolved, not upon a plea in abatement, but upon a motion quashing the same ; hence the cases cited, where the attachment was disposed of upon the issues made by plea in abatement, are not applicable here. Lane v. Fellows, 1 Mo. 353, was where the attachment was dissolved on motion of the defendant. There was judgment by default for want of plea. The plaintiff brought error to reverse the judgment. It was said by Judge Pkttebonh, who delivered the opinion of the court, “that a writ of error does not lie to reverse an order of the circuit court dissolving an attachment.” This was ruled upon the authority of Shortz v. Quigley, 1 Binn. (Pa.) 226. But, notwithstanding this opinion of the learned judge, he proceeded to pass upon the question of the sufficiency of the affidavit for the attachment. In Curtis v. Little, 7 Mo. 453, the attachment was quashed, on motion of the defendant, on the ground of the insufficiency of the affidavit. The plaintiff appealed from the final judgment. The propriety of the action of the circuit court in quashing the attachment was passed upon. It was held that the affidavit was good, and that the court of common pleas committed error in quashing the attachment. The judgment was reversed, and the cause remanded. A similar rule of practice has been observed in many other antecedent and subsequent cases. Alexander v. Haden, 2 Mo. 229; Hackney v. Williams, 8 Mo. 455; Stevens v. Robins, 5 Mo. 18; Livengood v. Shaw, 10 Mo. 273; Kritzer v. Smith, 21 Mo. 297; Henderson v. Drace, 30 Mo. 358; Jasper Co. v. Chunantt, 29 Mo. 358; McHonald v. Fist, 53 Mo. 343; Bank v. Knox, 47 Mo. 333; Musgrove v. Matt, 90 Mo. 107 ; Claflin v. Hoover, 20 Mo. App. 314. While it is not true that every order of a court made in the progress of a cause can be made the subject of an exception and review on writ of error or appeal, yet to say that a ruling, like the one under consideration, is in no case the subject of review by the revisory courts, would indeed be a very great reproach to our system of remedial justice. The plaintiff alleged in his affidavit a sufficient cause for an attachment. The writ was issued and the property of the defendant seized. The court, on motion of defendant, erroneously quashed the writ and ordered a* release of the attached property. Now we are asked to hold that, though the plaintiff had a good cause of action and a sufficient ground for attachment, the erroneous action of the court, in respect to the attachment, is not the subject of revision and correction ; that there is no remedy. To this view of the case we cannot assent. Ü li jus, Hi remedium. It follows from these observations that, the circuit court should set aside its order quashing the writ of attachment and the levy thereof, and reinstate the attachment so quashed, which is hereby accordingly

directed.

All concur.