Coombes v. Knowlson

• Decision Date: 15 February 1916
• Docket Number: No. 1567.,1567.
• Citation: 193 Mo. App. 554,182 S.W. 1040
• Parties: COOMBES v. KNOWLSON.
• Court: Missouri Court of Appeals

182 S.W. 1040

193 Mo. App. 554

COOMBES v. KNOWLSON.

No. 1567.

Springfield Court of Appeals. Missouri.

February 15, 1916.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Marna F. Coombes against A. B. Knowlson. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with suggestions.

Arthur L. Oliver, of St. Louis, and Everett Reeves and A. Sloan Oliver, both of Caruthersville, for appellant. R. L. Ward and C. G. Shepard, both of Caruthersville, for respondent.

ROBERTSON, P. J.

Plaintiff prevailed below, and defendant has appealed. The action is based on a contract entered into between plaintiff's husband and defendant in the state of Illinois, and provides for the manufacturing of certain lumber in Pemiscot county, this state, for the defendant. The contract was assigned for a valuable consideration by plaintiff's husband to her. The husband continued the business as her agent, and it was directly under his personal supervision. This action is to recover the amount claimed to be due plaintiff as assignee of said contract for lumber manufactured after the assignment.

The first point urged here in behalf of the appellant is that the contract, having been executed in Illinois, is one governed by the laws of that state, and that, since there is no proof of the laws of Illinois concerning the right of a married woman to contract and prosecute suits in her own name, we must presume that the common law is yet in force there. Assuming said premises of defendant to be correct, we must, in following out the one concerning the common law, take the construction of the common law as made by the decisions of our own state as correct. Wade v. Boone, 184 Mo. App. 88, 98, 168 S. W. 360, and cases there cited.

The argument brought forth by the appellant to defeat the plaintiff's action on this point is based more directly upon the idea that she cannot maintain the suit in her own name than that she cannot make a binding contract. In considering contracts at common law made by married women, it is necessary to keep in mind the distinction between executed and executory contracts. Neef v. Redmon, 76 Mo. 195, 197, and Walker v. Owen, 79 Mo. 563, 571. At common law, in contemplation of courts of equity, the wife may have a separate existence independent of her husband as to choses in possession. Terry, Trustee, v. Wilson, 63 Mo. 493, 498. Again, it is held in Coughlin v. Ryan, Administrator, 43 Mo. 99, 104, 97 Am. Dec. 375, that:

"If the husband should permit her to carry on business on her sole and separate account, without any such antenuptial agreement, all that she earns will be deemed to be her separate property and disposable by her as such, subject to the claims of third persons properly affected by it."

The facts in this case disclose a liability on behalf of defendant to the plaintiff, even at common law, and, although at common law she might not maintain a suit at law in her own name, that rule has been abrogated in this state by our statute (section 8304, R. S. 1909), and she can maintain a suit at law in her own name in this state irrespective of common-law rules.

"It is universally admitted and established that the forms of remedies and modes of proceeding and the execution of judgments are to be regulated solely and exclusively by the laws of the place where the action is instituted, or * * * according to the lex fori." Ruhe v. Buck, 124 Mo. 178, 184, 27 S. W. 412, 25 L. R. A. 178, 46 Am. St. Rep. 439.

In that opinion the rule is extensively discussed and numerous instances given similar to the action in the case at bar where it was held that the action was governed by the laws of the state where prosecuted. Hence we have this situation: That at common law, where the wife contracted, and after there was a performance on her part, as in the case at bar, the other party could not escape liability because of the ordinary disability with which the common law burdened a married woman. The liability had been incurred, and then the only question was as to how it might be enforced. Our laws solve that problem and permit her to sue as a feme sole.

It is held in Tremain v. Dyott, 161 Mo. App. 217, 221, 142 S. W. 760, that matters connected with the performance of a contract are regulated by the laws of the state where performed. In Smoot v. Judd, 161 Mo. 673, 684, 61 S. W. 854, 84 Am. St. Rep. 738, it is said that:

"The law of the place where the contract is to be performed is the law of the contract."

That point was said to be not very material in that case. The opinion in that case was overruled upon another point in the same case. 184 Mo. 508, 518, 83 S. W. 481. However, owing to our ruling as to the right of plaintiff to maintain her suit at law in this state in her own name, even if the contract is governed by the laws of Illinois, that question is not material in this case.

Plaintiff's husband was a witness in her behalf, and testified not only to matters in which he acted as agent for his wife, but also as to other transactions between him and the defendant prior to the assignment of the contract to the plaintiff. It is now insisted on behalf of defendant that it was error to allow the testimony outside of the agency transactions to be admitted. Our attention is called to the pages of the record where it is stated that defendant's objection upon this point was overruled. What really occurred, as shown by this part of the record, is that plaintiff's husband, when he began his testimony, was asked if plaintiff was his wife and was asked about his signature to the contract. An objection was interposed on behalf of the defendant "because the proper foundation had not been laid." The court overruled the objection, and defendant excepted. The witness was then asked if he was plaintiff's agent in conducting this business from and after the assignment. He answered the question in the affirmative without objection. In behalf of the defendant an objection was made that it called for a conclusion. There was no ruling, or exception. The court then requested the witness "to state in what way the agency was arranged." The witness proceeded to testify about his management of the business for his wife, and shortly the objection was made in behalf of defendant to any testimony "on the part of the witness, because he is the husband of the plaintiff and the proper foundation had not been laid." The objection was overruled, and the defendant excepted. The witness then proceeded to the close of his testimony without any objection on the part of the defendant as to the incompetency of the witness, narrating mostly the transactions between him and the defendant prior to the assignment. At the close of the direct examination defendant's attorney stated:

"The defendant now moves the exclusion of all this witness' testimony because he is the husband of plaintiff and the proper foundation for his testimony had not been laid."

The court overruled the motion, and the defendant excepted. The court committed no error in making those various rulings, because, when the first objections were made, the witness was referring to transactions about which he was unquestionably a competent witness.

The motion to exclude all of the testimony of the witness was properly denied because the principal part of it was concerning facts about which the plaintiff could properly testify, and it would have therefore been error to exclude all of the testimony. If the defendant desired a ruling upon the exact point for which he now contends, the motion should have been so framed that it would have specifically referred to the objectionable testimony.

The defendant complains that the plaintiff's husband was improperly allowed to testify about some of the lumber having been ready for delivery a considerable length of time before the defendant accepted it. The error into which the defendant has fallen in urging this point is in view of the fact that this testimony was offered for the purpose of reducing the amount of interest to which defendant would be entitled should the jury believe there was an agreement to pay interest.

The defendant insists that similar testimony offered by him was rejected, but the question which the defendant claims he was not allowed to answer was one asked him as to whether he had continued to receive estimates and pay for lumber as the contract required. The exclusion of the answer to this question, even if it had been in the affirmative, could not have injured the defendant, because no one denied that he did not accept lumber and pay therefor, but the controversy was over a discrepancy on the measurements upon which plaintiff relied and those contended for by the defendant...