Freiler v. Kear

Opinion,

Mr. Justice McCollum :

Barbara Freiler, wife of Daniel Freiler, leased a brewery building with the appurtenances and fixtures to F. G. Kear and Daniel Freiler, partners under the firm name of F. G. Kear & Co., upon their agreement to pay her an annual rent of $800, keep the premises in good repair, use the same in a proper manner during the tenancy, and at the end of it deliver to her the premises and fixtures in the same condition they were in when taken, “ natural wear and tear only excepted.” When the tenancy was determined by the act of the parties, she complained that tlie lessees had failed to comply with their agreement respeeting the use, care, and surrender of the demised property, and brought this action to recover the damages she had sustained by reason of their breach of it. Both partners were summoned, a declaration was filed, and a rule to plead was entered and sei'ved upon them, hut there was no appearance or plea by or for Daniel Freiler. We copy from the record the only pleas filed in the case, to wit: “ F. (>. Kear, one of the defendants, pleads non-assumpsit and payment, payment with leave,” etc. Upon the issue thus made the case was tided and when the evidence was closed defendant Kear, by his counsel, submitted the following point: “ The evidence being undisputed that Barbara A. Freiler, in whose right this action has been brought, is the wife of Daniel Freiler, a defendant (and who is also made plaintiff with said Barbara), no separation .being alleged, or in fact having at any time existed between them, this action cannot be maintained and the verdict must be for the defendant.” The question raised by this point was reserved; the case was referred to the jury on its merits and there was a verdict “ in favor of the plaintiff and against the defendant for $1,272.73.” The court, upon consideration of the question reserved, entered judgment for the defendants non obstante veredicto.

The question presented for our determination is, whether a wife with her husband’s consent can maintain an action against a firm of which he is a member, upon a lease by that firm of her separate real estate. We notice, first, the cases cited and relied on by the learned judge of the court below, to support his conclusion. Ritter v. Ritter, 31 Pa. 396, decided that a married woman cannot by her next friend maintain an action of debt against her husband, on a contract made during coverture, and that such an action is not authorized by the act of April 11,1848, or its supplements. Miller v. Miller, 44 Pa. 170, admitted the validity of the contract sued upon, but decided that the right of action upon it was suspended during coverture. In these cases there was aix appearance by the husband and a plea of coverture. In Kutz’s App., 40 Pa. 90, a married woman lent to a firm of which her husband was a member, $5,000, upon the firm note dated November 25, 1845, and payable to her in one year with interest. On the 8th of Augxxst, .1857, the firm made an assignment for the benefit of its creditors. On distribution of the fund arising from the assigned estate, the wife claimed the amount of the note with interest, and the claim was allowed. It was objected that her claim was barred by the statute of limitations, but this court held that the disability of coverture under which she was from the date of the note to the assignment, prevented the running of the statute, and that she was not barred of her claim in equity. This was an application, to a claim by a wife against'á firm of which her husband was a member, of the familiar principle that where a wife has a cause of action against her husband the statute does not run against it during coverture: Towers v. Hagner, 3 Wh. 48; Marsteller v. Marsteller, 93 Pa. 350.

But these cases differ from the one at bar, in that the element of consent or. default by a husband was not in them. We have departed from the common law rule, on this subject, to the extent of permitting a- husband to confess a judgment directly to his wife for a debt he owes her, and of allowing her with his consent to have execution on such judgment and to sell his property: Rose v. Latshaw, 90 Pa. 238, and Lahr’s App., 90 Pa. 507. There is nothing in this consent or default of the husband, if there is no taint of fraud in it, of which third parties can complain. A judgment confessed by the husband to his wife cannot be set aside or impeached by his creditors on the ground of the legal unity of the parties to it. That is no concern of theirs. They may attack it for fraud, as they may attack a judgment confessed to other parties that is fraudulent as to them. It is only the husband who can object to a suit against him by Ms wife, and if he chooses to confess or suffer judgment in the suit, domestic peace is not disturbed by it, and strangers will not be allowed to object except when such action is in fraud of them. If a husband may confess or wittingly suffer a judgment in favor of his wife against himself for a debt due her from him, why may he not confess or suffer judgment in her favor for a debt due her from a firm of which he is a member ? Asa partner he may confess a judgment for a firm debt and on such judgment the property of the firm may be sold: Ross v. Howell, 84 Pa. 129. His authority in this respect is not taken away or abridged by the fact that his wife is the creditor of the firm; and he may exercise it for her protection, with as much reason and propriety, as for the security of any other creditor. While he may object to a suit by his wife against himself, and perhaps to her suit against the partnership of which he is a member, upon the ground of the legal unity created by the marriage, his partners cannot. They have acqfiired no interest in the right of the husband to make this defence; it is as exclusively his right now, as before the partnership was formed, and they cannot use it to shield the firm from the just claims of its creditor. It matters not to them whether that creditor be the wife of their co-partner, or a stranger; and the husband is under no legal or moral duty to interpose a technical defence which he alone can make, to defeat or postpone an honest claim of his wife against the firm, simply because lie is a member of it. As it is established by the verdict of the jury, in an issue which affected only the merits of the claim, that Rear & Co. are indebted to Mrs. Freiler in the sum of $1,272.78, upon their agreement with her by which they obtained the possession and use of her separate real estate, they ought in equity to pay it, and she may, with her husband’s consent, have judgment for it.

The judgment is reversed, and now judgment is entered on the verdict in favor of the plaintiff and against the defendant for $1,272.78 with interest thereon from October 6,1887, and costs.

On June 7, 1889, a modifying order was filed, as follows:

Our attention has been called to the fact that a rule for new trial is pending in the court below, and we are asked to modify the judgment entered on the 20th of May last, to the extent of striking out the judgment against the defendant. .This, in order to prevent possible injury and injustice, we have concluded to do. It is proper to say, however, that we do not approve the practice of entering judgment non obstante veredicto, while a motion or rule for new trial is undisposed of. It is probable that the learned judge of the court below pursued this course in the belief that it was authorized by the decision in Harper v. Keely, 17 Pa. 234; but we do not regard that case as establishing a rule of practice on this subject. In Penn. Salt Mfg. Co. v. Neel, 54 Pa. 9, it was held that entering judgment on a reserved question substantially overrules a motion for new trial, without distinct action upon it.

We strike out the judgment against the defendant and award a procedendo, so that our judgment shall stand.

Judgment reversed and procedendo awarded.