Sewell v. Walton , 1918 Tex. App. LEXIS 617 ( 1918 )

In support of the contention made by appellant that the trial court erred when he sustained the demurrers to the petition and dismissed the suit, it is insisted that "a married woman," quoting from appellant's brief, "since the act of 1913, is authorized to make any contract, without the joinder of her husband, except a contract of joint liability on a note, or of suretyship on a bond or obligation of another."

It is further insisted that, if it is not true that said Act 1913 conferred such power on a married woman, the court nevertheless erred, because it appeared from allegations in the petition that the contracts sued upon were made by Alice Walton for the benefit of her separate estate, and therefore were binding on her; that, if it did not so appear, it did appear from said allegations that at the time Alice Walton made the note for $792 she was living separate and apart from her husband, and for that reason had power to contract as she did; or, if it did not so appear that she was living separate and apart from her husband, it did so appear that she had represented to appellant she was so living and was estopped to deny that she was.

It seems that the act of 1913 referred to (General Laws, p. 61), not only did not confer upon a married woman power she did not before have to contract generally as a feme sole might (Bank v. Ferguson, 192 S.W. 1088; Shaw v. Proctor, 193 S.W. 1104; Bank v. Tinkham, 195 S.W. 880; Aiken v. Bank, 196 S.W. 1017), but deprived her of power she did have before its passage to bind herself by a contract made by her alone for the benefit of her separate estate (Aiken v. Bank, supra). It seems, therefore, that error of the trial court in ruling as he did cannot be predicated upon power Alice Walton had to contract generally, nor upon allegations in the petition, if there were any, showing that the contracts sued upon were made by her for the benefit of her separate estate. Nor can error of the trial court be predicated upon allegations in the petition showing that Alice Walton and her husband had permanently separated and were living apart from each other; for the petition contained no such allegations.

It follows that if the trial court erred, as complained of, for any of the reasons assigned by appellant, it was because it appeared from allegations in the petition that Alice Walton was estopped from denying that at the time she executed the note for $792 she had not permanently separated from her husband and was then living separate and apart from him. Davis v. Saladee, 57 Tex. 326. The allegations in the petition with respect to this matter were that Alice Walton represented to appellant "that she and her husband, Cline, were separated and were living separate and apart; that she did not wish him to have, and refused to allow him to have, anything to do with her affairs."

The allegations were not sufficient to show an estoppel against Alice Walton to deny the truth of the representations she was thereby charged with having made to appellant, because, If for no other reason, it did not appear that appellant, being ignorant of the truth about the matter, was induced by a reliance upon the truth of such representations to act in a way he otherwise would not have acted. McLemore v. Bickerstaff, 179 S.W. 537; 10 R.C.L. 148, 149.

The judgment is affirmed.