Meier & Frank Co. v. Bruce

BUDGE, C. J.,

Dissenting. — I am unable to concur in the opinion of my associates, and, in view of the fact that what I believe to be the settled policy of this state is being departed from, I shall state briefly my reasons for dissenting. I am not unmindful of the fact that the rule announced in the majority opinion has been announced in many jurisdictions and is sustained by respectable authority, but my examination of the cases has convinced me that there is no uniform rule, and I find that in many jurisdictions a different rule has been followed.

/Under the common law, for reasons based upon public policy, a married woman could not contract. That policy, to my mind, is still a part' of the common law and public policy of this state, except in so far as it has been encroached upon by legislative enactment, Under our statutes and the previous decisions of this court, a married woman’s right to contract is limited absolutely to contracts for her own use or benefit, or in reference to the management and control or for the use and benefit of her separate property, and that such is the public policy of this state will be readily seen from an examination of the Idaho decisions which have been collected and cited in the majority opinion. Such public policy may exist in the absence of a statute declaring it. We should not lose sight of the fact that the limitations above referred to relate solely to the capacity of a married woman to contract, and have no reference whatever to the status of her property or its liability to be subjected to the payment of any debt which she may lawfully contract. See. 2685, Rev. Codes, quoted in the majority opinion does not even purport to enlarge her capacity to contract, but merely renders her separate property liable for any debts which may be lawfully contracted by her, either before or after marriage.

I readily concede that as a general proposition in the conflict of laws and under the comity of states the lex loci contractus determines the contract and the lex fori determines the remedy, but, as Prof. Minor has clearly pointed out, there are the following well-defined exceptions to the rule: “ (1) "Where the enforcement of the foreign law would contravene some established and important policy of the state of the forum; (2) where the enforcement of such foreign law would involve injustice and injury to the people of the forum; (3) where such enforcement would contravene the canons of morality established by civilized society; (4) where the foreign law is penal in its nature; and (5) where the question relates to real property.” (Minor on Conflict of Laws, sec. 5, p. 9.)

Referring to the case of Milliken v. Pratt, cited in the majority opinion, I desire to quote the following commentary thereon, taken from the note to Locke v. McPherson, 85 Am. St. 571, as follows: “Even this case, which'seems to be a leading one, and which is cited in most of the later cases in that state and elsewhere, recognizes that where the incapacity of a married woman is ‘the settled policy of the state, for the protection of its own citizens, that it could not be held by the courts of that state to yield to the law of another state in which she might undertake to contract.’ The court sustained the action because there was no reason of public policy in Massachusetts which would prevent its maintenance. We believe the better considered cases in general go no further than this — namely, that if the contract is void by the law of the married woman’s domicile and opposed to the settled public policy of such state, the courts of the domicile will not enforce it, notwithstanding it was valid where made. The comity of a state does not go to the extent of enforcing rights prohibited by its law.”

It would seem that even the Massachusetts court has by later decisions limited the rule announced in Milliken v. Pratt. In Mandell Bros. v. Fogg, 182 Mass. 582, 94 Am. St. 667, 66 N. E. 198, that court held that, “A statute of the state providing that the property both of the husband and of the wife shall be chargeable with the expenses of the family and the education of the children, and that in relation thereto they may be sued jointly or severally, will not be enforced in another state, though goods were bought on credit in the first named state by the husband when both he and his wife were temporarily therein.”

A As I view the matter, it is against the settled policy of this state, as derived from the common law, which has been relaxed only in the particular above mentioned, to permit a married woman to enter into any contract except for her own use or benefit or in reference to the management and control or for the use and benefit of her separate property.

I agree with the majority opinion that there would be nothing inherently unjust in holding a married woman’s property for her husband’s debt, if such were the law, but until all common-law disabilities are removed, creditors of a married woman should occupy the same position, whether foreign or domestic, and it is not incumbent upon this court to extend the doctrine of comity to enlarge rights of a foreign creditor and thereby permit her separate property to be taken in satisfaction of a community debt.

I am unable to see where the enforcement of this contract would contravene any of the canons of morality recognized in this state, but as pointed out by Prof. Minor in the quotation hereinbefore set forth, “where the enforcement of the foreign law would contravene some established and important policy of the state of the forum, ’ ’ the law of the forum forbids the enforcement of the foreign law. And this exception is just as clearly defined, just as well established, and supported upon as sound reason and eminent authority as the other exceptions to the rule that the lex loci contractus should obtain, which have been enumerated by Prof. Minor.

The question is: Can a judgment be recovered against a married woman and her separate property subjected to the payment of the same on a foreign community debt, when it must be conceded that a judgment could not be recovered against her, or her property subjected to the payment of a community debt, incurred in this state, where the action is brought? The remedy in favor of the foreign creditor is granted while the same remedy in favor of a resident creditor is denied. Under the holding in the majority opinion there could be no clearer illustration of the discrimination between the remedy granted to creditors than appears in the instant ease. Respondent, a foreign creditor, is the assignee of a local creditor of appellant and her husband, who contracted a community debt while domiciled in this state and prior to their removal to the state of Oregon. The demurrer to the cause of action for this claim was sustained, for the reason that it was a community debt and not a debt incurred by her for her own use and benefit, or in connection with the management and control or for the use and benefit of her separate estate. Therefore, the domestic creditors had no remedy either against her personally or her separate estate. The foreign creditor might waive any claim against her husband and subject her separate estate to the payment of a like debt. Such a holding, in my opinion, is both contrary to the established public policy of this state and not in harmony with the legislative will.

As was said in the case of Ruhe v. Buck, 124 Mo. 178, 46 Am. St. 439, 27 S. W. 412, 25 L. R. A. 178: “When this action was brought, this court had, by former decisions, held that a married woman could not be sued by attachment in an action at law in Missouri. No such remedy was available in our courts in favor of resident creditors. Had any citizen of Missouri proceeded by attachment at law against this real estate on a contract made or to be performed in this state, no lien would have been created, and no valid judgment could have been rendered against Mrs. Buck. . ” So in this state this court has by a long and uniform line of decisions held, not only that a married woman can contract solely with respect to the matters above pointed out, but also that a complaint which fails to allege either that the debt was incurred for her own use and benefit or in connection with the management and control or for the use and benefit of her separate property does not state a cause of action. To my mind this goes, not merely to her capacity to contract, but definitely limits the remedy which pretending creditors may seek to invoke against her.

In view of the fact that the complaint contained no allegation that the contracts sued upon were for her own use or benefit, or in reference to the management and control or for the use and benefit of her separate property, I think the demurrer should have been sustained, for the reasons above given.

Some of the other leading cases so holding are: First National Bank v. Shaw, 109 Tenn. 237, 97 Am. St. 840, 70 S. W. 807, 59 L. R. A. 498; Armstrong v. Best, 112 N. C. 59, 34 Am. St. 473, 17 S. E. 14, 25 L. R. A. 188; Brown v. Dalton, 105 Ky. 669, 88 Am. St. 325, 49 S. W. 443.

In my opinion, the demurrer should have been sustained and the judgment appealed from should be reversed.