Mendenhall v. Leivy , 45 Mo. App. 20 ( 1891 )

GriLL, J.

— A fair -understanding as to the nature of this case may be gathered from the following statement of the pleadings in the case made by defendants’ counsel:

This is a proceeding in equity, to subject the separate estate of Elizabeth Leivy and Caroline Landauer to the payment of the amount alleged to be due plaintiff, for his services rendered in behalf of said defendants, and damages alleged to have been sustained by him, on account of the breaches of contract sued upon. It is alleged in petition, that on January 4, 1889, plaintiff entered into a written contract with defendants, E. Leivy and C. Landauer, by the terms of which said defendants agreed to furnish plaintiff their house and farm in Cass county, Missouri, belonging to said defendants, from March 1, 1889, to March 1, 1890; and, also, to furnish said plaintiff feed for his team and four head of hogs; and also milk cows enough to furnish butter to plaintiff; and also were to pay plaintiff $25 per month for wages for himself and team, for one year, commencing March- 1, 1889 ; that plaintiff was to cultivate the crops with his own team, and do such work for said defendants as they desired done, and to furnish certain farm tools, set forth in written contract; that plaintiff was to board himself, raise chickens and furnish eggs therefrom to defendants', and also to furnish said defendants the butter made in excess of that which was needed for plaintiff’s own use; that said contract was made under the seal of both defendants and their husbands; that plaintiff took possession of said house and farm, and worked for defendants from March 1, 1889, to October 18, 1889, and complied with all the terms and conditions of said contract upon his part; that said defendants failed and refused to com ply with their part of said contract, in this, that on October 18, 1889, they discharged plaintiff without cause from their employ, sold their corn and cows, refused to furnish any cows for milk, or to furnish any corn for hogs, and refused to permit plaintiff to work for them longer; and refused to further comply with the contract upon their part. It is then alleged in the petition, that defendants are married to their codefendants, and are, and were at said date, the owners of a large amount of personal property, merchandise, clothing, etc.,in their storehouse in Harrisonville, Cass county, Missouri, and also a piano, an organ and a large amount of household property, in said Harrisonville, Missouri, which is, and was, the sole and separate property of said E. Leivy and C. Landauer; that at said date, October 18, 1889, defendants were indebted to said plaintiff in the sum of $42.15 for past services, as a laborer for hire under said contract; that by reason of the defendants’ failure to carry out the contract, and by reason of their conduct in discharging him, he has been damaged in the sum of $121.60, and in all in the sum of $163.75, by which a lien and charge is created upon said property, for which judgment is prayed.

The amended answer contains a general denial, and then avers that all the real and personal property mentioned in said contract was owned by said E. Leivy and C. Landauer, as their separate estate. It is further averred that all the real estate and personal property mentioned in said contract, as well as all the personal property, merchandise, clothing, etc., in their storehouse at Harrisonville, Cass county, Missouri, was sold and disposed of by the said defendants to their creditors, prior to the filing of the amended petition herein, and that they are not now the owners, either jointly or separately, of any of the property mentioned in said petition ; that by reason thereof the court has no jurisdiction over them, etc. The execution of the contract sued on was put in issue by defendants’ denial under oath.

The reply denied the allegation of new matter in the answer, except as to the allegation of partnership between defendants, and the ownership of the property, etc. A decree was rendered in favor of the plaintiff for the full amount claimed in the petition, charging a certain lot of clothing and other described merchandise with the payment thereof, etc. Defendants, on an unsuccessful motion for new trial, have appealed to this court.

I. We shall now proceed to notice in detail the various reasons assigned for reversal. The first point suggested is, that the petition fails to aver that in January, 1889 (the date of the contract alleged to have been executed by these married women), the said defendants were at the time the owners of separate property. There is no question, as counsel claim, that, before the contract of a married woman can be of any validity, she must, at the time of making the same, be possessed of a separate estate. It is, only from this fact, tlie existence of this separate property, that the contract of a married woman can be considered of any force or effect whatever. No authorities are required to sustain this well-understood doctrine. Plaintiff, then, was bound to prove and allege the existence of such estate in these defendants at the date of the contract. Was this fact sufficiently alleged in the petition? We hold that it was. The petition first sets out that on January 4, 1889, the contract was entered into whereby plaintiff was engaged to work and manage the farm for the year beginning March 1,1889 ; that plaintiff entered upon the work and continued the same till discharged in October following. Then follows in a separate clause this allegation : ‘ ‘ That defendants are married to their codefendants, as aforesaid, and are, and were at said date, the owners of a large amount of personal property, merchandise, clothing, etc., in their storehouse at Harrisonville, Cass county, Missouri, and also a piano, an organ and a large amount of household property, in said Harrisonville, Missouri, which is, and was, the sole and separate property of the said Elizabeth Leivy and Caroline Landauer.” It was evidently the purpose of the pleader, in the use of the words “said date,” to designate January 4, 1889, when said contract was made. But even admitting the petition to be defective in this respect it has been cured by the allegations of the answer. It is there declared that “said defendants for further defense state, that they were engaged in the mercantile business on the fourth day of January, 1889, in Harrisonville,.Missouri, under the firm-name and style of E. Leivy & C. Landauer, and continued in said business until about the first day of December, 1889, when said copartnership ceased to exist; that the real estate, mentioned in plaintiff’s petition, was owned and held during the period aforesaid by said firm of Elizabeth Leivy and Caroline Landauer as their sole and separate estate, and as a part of the assets of said copartnership/ that all of the personal property mentioned in the alleged contract sued on also belonged to said firm of Elizabeth Leivy and Caroline Landauer, and was owned by them as their sole and separate estate aforesaid ; that all of said property, both real and personal, mentioned in said contract sued on, as well as all the personal property, merchandise, clothing, etc., in their storehouse in Harrisonville, Cass county, Missouri, was sold and disposed of by said Elizabeth Leivy and Caroline Landauer to their creditors prior to the filing of the amended petition herein, and that they are not now the owners, either jointly or separately, of any of the property mentioned in said petition; that by' reason thereof this court has no jurisdiction over them, and they ask to be discharged with their costs herein.”

Defendants say in their answer that the farm and personal property thereon was their sole and separate property, and were a part of the assets of said copartnership business. Is it not fair to conclude, from this statement, that all the assets of said copartnership business (the stock of goods and all included) were of the same nature, held by the same title, and were owned by defendants as their sole and separate property % This was clearly the construction of the answer at the time by the plaintiff, since in the reply it was admitted “ that the defendants were, at the date named, partners, and were at the time alleged the owners of the property in the answer described as their separate property.” Construing defendants’ answer then in the light of the reasonable doctrine lately announced by our supreme court, that the pleading should be taken in its plain and ordinary meaning, giving snch an interpretation to it as fairly appears to have been intended, we are of the opinion that said answer, by necessary implication at least, declares that the stock of goods in the store at Harrisonville was, as the farm, the sole and separate property of defendants. Stillwell v. Ham, 97 Mo. 579 ; Donaldson v. Butler Co., 98 Mo. 163.

II. The next point may be thus stated: It is contended, in effect, that, because of the terms of the contract between plaintiff and defendants, the plaintiff’s engagement had relation to the farm, and not to the stock of the merchandise ; then the presumption of the law is that defendants only meant to charge the farm, and resort cannot be had to the stock of goods. There can be no question, in the abstract, to the correctness of the principle invoked by defendant’s counsel, but in our opinion it has no room for application here. The rule sought to be enforced is this : If a married woman shall make a definite or express mortgage in writing, pledging certain of her separate property to secure an obligation, then resort can be had to none other, and this is the extent of the decisions cited by counsel. Kimm v. Weippert, 46 Mo. 545; Seifert v. Jones, 84 Mo. 597; Kimball v. Silvers, 22 Mo. App. 528.

In all these cases the married woman had in express terms in writing (by mortgage, etc. ) pledged certain described property for the payment of. her obligation, and it was held that the creditor was confined to snch property. The reasons for the rule, as well as the distinction between that class of cases and the one we have here, are well defined by Martin, Commissioner, in Seifert v. Jones, supra. He says: “I am well aware that she must be regarded as charging her separate estate in the act of contracting an obligation, unless a contrary intention is evidenced by her contemporaneous writing. The charge is implied in the act of contracting the obligation. But if she, in writing, makes an express charge of the obligation upon other property, nothing is left to implication, and the implied charge does not arise.” Quite different from this class of cases is the one at bar. There is nothing on the face of the contract here under review pledging defendants’ farm (a portion of their separate property) to the payment of their obligation to plaintiff. The only charge is one arising by implication. By entering into this contract of hiring with plaintiff the defendants are presumed in equity to charge thereby all their separate property by them possessed. Coates v. Robinson, 10 Mo. 757; Whitesides v. Cannon, 23 Mo. 457.

III. Several of the matters urged against the judgment of the lower court relate to the sufficiency of the evidence to sustain the court’s finding. We have carefully examined the testimony as contained in the record and fail' to discover any reason for defendants’ complaint. The evidence to sustain the authority of E. Leivy to represent these defendants in the making of the contract in suit is ample. Mr. Leivy seems to have been invested with the fullest powers to manage and conduct their business, not only in relation to the mercantile business, but the farm as well. The evidence, too, tends to show that they had full knowledge all the time of his acts. There is one matter only in the finding of facts by the court, about which there seems any color of right to complain, and that is, that the defendants, Elizabeth Leivy and Caroline Landauer, at the time of entering into the contract with the plaintiff owned the said clothing, etc., named in the decree. But, however that may be, whether they then owned these identical goods, or owned others for which these stand as a substitute the result is all the same. It was clearly the one way or the other ; and, stating it most strongly for defendants, if they had a certain stock of clothing, piece goods, etc., in their store when they made this contract, and the same was, as must be admitted, their separate property charged with the payment of their obligation, then it cannot be justly contended that because the stock may have changed by selling and buying, the plaintiff’s right to charge the same was thereby lost. It is the stock of goods as a whole that becomes charged with the payment of plaintiff ’s claim, and the selling of some articles and substituting others will not have the effect of destroying the rights of the plaintiff. Lee v. Cohick, 39 Mo. App. 675. If the decree had charged more goods than can be found it does no harm to the defendants. The description, too, of the goods charged is based on sufficient evidence, and is about as complete as could be made. They are described as goods of a certain general character located in a certain store.

We have considered every point made by defendants’ counsel, and have given expression to our views on such as we deem proper. In our opinion the judgment of the circuit court was clearly for the right party, and should be affirmed. It is so ordered.

All concur.