Edminston v. Smith

• Citation: 92 P. 842,13 Idaho 645
• Parties: MARY E. EDMINSTON, Respondent, v. EMORY SMITH and MARTHA SMITH, Appellants
• Decision Date: 30 November 1907
• Court: United States State Supreme Court of Idaho

92 P. 842

13 Idaho 645

MARY E. EDMINSTON, Respondent, v. EMORY SMITH and MARTHA SMITH, Appellants

Supreme Court of Idaho

November 30, 1907

HUSBAND AND WIFE-NECESSARIES FURNISHED WIFE-LIABILITY OF WIFE ON SPECIAL PROMISE TO PAY FOR NECESSARIES-LIABILITY OF HUSBAND TO PAY FOR NECESSARIES FURNISHED WIFE.

1. The primary duty rests on the husband by reason of his marital contract and operation of law to furnish the wife with the necessaries of life, which includes board and lodging, and a creditor who furnished the wife with such necessaries may maintain his action against the husband, although the latter never contracted the debt, nor promised to pay the bill.

2. The fact that the debt was contracted by the wife, and the credit was extended on the faith of her promise to pay, does not relieve the husband of the liability imposed on him by operation of law, independent of the wife's contractual liability to pay.

3. Where necessaries are furnished the wife upon her special contract, and on her personal responsibility to pay therefor she can be held to pay the debt, and to that end may be sued as a feme sole. In such case, the debt is incurred for her use and benefit.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action against husband and wife to recover a debt for board and lodging furnished on request of the wife and on her promise to pay therefor. Demurrers to complaint were overruled and defendants refused to answer, whereupon judgment was entered and defendants appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

Eugene A. Cox and Edward S. Fowler, for Appellants.

A married woman cannot bind herself for the payment of a debt of her husband, or for a community debt, or for a debt that was not contracted for her own use, or for the use, or benefit, of her separate estate, or in connection with the control and management thereof, or in carrying on or conducting business therewith. (Bank of Commerce v Baldwin, 12 Idaho 202, 85 P. 497; Dernham v Rowley, 4 Idaho 753, 44 P. 643; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Strode v. Miller, 7 Idaho 16, 59 P. 893; Holt v. Gridley, 7 Idaho 416, 63 P. 188.) It is undoubtedly a presumption of law that every debt contracted during the existence of marriage is the debt of the community. No reason is assigned in the complaint why the wife should pay for the board of her husband, or for the board of herself and husband, or for her own board. Certainly, if anything can be a community debt, the board of the husband and wife is such a debt.

Generally speaking, all obligations contracted during the marriage are community obligations. (6 Am. & Eng. Ency. of Law, p. 339; Herbert v. Rupertus, 31 Ind.App. 553, 68 N.E. 598.)

A married woman cannot bind herself for her board while living with her husband and engaged in no business. (Chickering-Chase Bros. Co. v. White & Co., 127 Wis. 83, 106 N.W. 797.) The husband alone, if anybody, is liable for it. It has been held that the husband alone is responsible for the board of his wife and minor children, unless the wife expressly made the board chargeable upon her separate estate. (Israel v. Silsbee, 57 Wis. 222, 15 N.W. 144; Flynn v. Messenger, 28 Minn. 208, 41 Am. Rep. 279, 9 N.W. 759; Feiner v. Boynton (N. J.), 62 A. 420.)

The changes in the law, concerning the separate property of a married woman, which have been made by statute have rendered her separate property legal instead of equitable. These changes have not, however, affected the manner in which contracts binding it must be enforced. They must still be enforced against the woman's separate estate by an equitable action. (3 Pomeroy's Eq. Jur., 3d ed., sec. 1099.) Consequently, section 2504, Revised Statutes, will not apply to this action.

If the wife contracts an indebtedness and the credit is given to her solely, the husband cannot be made liable. (Shelton v. Pendleton, 18 Conn. 417; Catron v. Warren, 1 Cold. (Tenn.) 353; Maulsby v. Byers, 67 Md. 440, 10 A. 235; Maxon v. Scott, 55 N.Y. 247.)

The class of cases in which the husband is held liable for contracts made by the wife includes cases in which she has contracted for necessaries, and the credit has been given to the husband, and it is held that the wife made a contract as agent for the husband. (Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362, 50 N.W. 77; Anthony v. Phillips, 17 R. I. 188, 20 A. 933, 11 L. R. A. 182.)

In such cases the wife has been held to have contracted for necessaries as the implied agent of her husband, and the credit has been given to him and not to her. They differ essentially from the case at bar.

Both the demurrers in the case at bar should have been sustained on the ground of the misjoinder of defendants. There is in the complaint no allegation of a joint promise or agreement or undertaking. There is no allegation of any written agreement.

Where persons are sued for several and distinct contracts, although the contracts are with the same persons or set of persons, they cannot be joined as defendants in one action, but each must be sued separately. (15 Ency. of Pl. & Pr. 548.)

There is no allegation in the complaint that the defendant, Martha Smith, made two separate contracts for room and board, one for herself for her own board, and one for the board of her husband. The entire contract cannot be enforced piecemeal. It must be enforced as it is made, or not at all. If the contract is entire it can be enforced only in its entirety. (7 Am. & Eng. Ency. of Law, p. 96.)

John O. Bender, for Respondent.

Under the authority of Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497, and the statute of this state, a married woman can be held for a debt even though it be a community debt, when she originally contracts the same, and it is for her own use and benefit.

When a married woman enters into a contract, in the first place, for board, lodging or wearing apparel, for herself, either she or her husband, or both, are liable in an action at law for the payment thereof under the Idaho statute.

Having consented to part payments out of her own money and received board and lodging therefor, appellant will not now be permitted to avoid the validity thereof while admitting the fact as she does under demurrer. (Stringer v. Montgomery, 111 Ind. 489, 12 N.E. 474.)

We submit to the court that this contract is divisible, and the part which remains unpaid can be enforced against the husband or the wife, or both, in this action at law. (Golpcke v. City of Dubuque, 1 Wall. 221, 17 L.Ed. 531; Porter v. Fisher (Cal.), 34 P. 700.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

This action was commenced in the lower court to recover from the defendants, who are husband and wife, a balance due for board and lodging. It is alleged that the wife, Martha Smith, entered into a contract with the plaintiff, in advance of incurring the indebtedness, whereby she promised and agreed to pay plaintiff the sum of $ 10 per week for board and lodging for herself and husband, or $ 5 per week for each. It is further alleged that after the board and room were furnished the defendants in accordance with the contract, the defendant, Martha Smith, made a further specific promise to pay the bill. Under the contract, plaintiff furnished board and lodging to the husband for thirty-three weeks and to the wife for thirty-nine weeks. The credits, amounting to some $ 296.50, are all set out in the complaint, from which it appears that payments were made by the wife and others by the husband, and still others by them jointly. The plaintiff alleges that she has applied these payments toward the satisfaction of the bill for the husband's board and the balance toward the wife's, leaving a balance of $ 63.50 due on the wife's board and lodging. Under the allegations of the complaint, the plaintiff had an undoubted right to apply these payments as she did. This action is, therefore, simply an action to collect the bill for the board and lodging of the wife. Whether the wife could have been held for the husband's board and room in accordance with her contract is immaterial for the purposes of this case. Even if she promised to pay a debt for which she could not be held, still there is no way to keep her from paying it if she wishes to keep her promise. She has the unlimited and absolute right of disposition of her separate property. When she comes to making payments on the indebtedness, if she fails to direct the application of the payment and indicates no intention of repudiating her contract as to the part on which she cannot be held in an action, the creditor may apply the payment as he chooses.

The defendants demurred to the complaint separately, each on the following grounds: "1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That there is a misjoinder of parties defendant; 3. That there is a misjoinder of causes of action." On the part of the wife, it is contended that the debt was either a debt of the husband or a...