Keith v. Allen, 11112.

• Decision Date: 02 July 1941
• Docket Number: No. 11112.,11112.
• Citation: 153 S.W.2d 636
• Parties: KEITH v. ALLEN.
• Court: Texas Court of Appeals

Page 636

153 S.W.2d 636

KEITH v. ALLEN.

No. 11112.

Court of Civil Appeals of Texas. Galveston.

July 2, 1941.

Rehearing Denied July 24, 1941.

Appeal from Harris County Court; William M. Holland, Judge.

Action by Walter T. Keith, administrator of the estate of Mary A. Wright, deceased, against Julia Wright Allen on a note. From a judgment for defendant, the plaintiff appeals.

Affirmed.

George N. Lusch on original brief, and Leon Weinberg and Geo. N. Luschon on rehearing, all of Houston, for appellant.

W. P. Hamblen, Jr., of Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by Walter T. Keith, as administrator of the estate of Mary A. Wright, deceased, to recover from Julia Wright Allen the amount of an unsecured note in the principal sum of $500.

Appellee answered by general demurrer and general denial. She alleged that at the time of the execution of said note she was the wife of one Howard Locke Allen, and specially pled her coverture in defense of appellant's cause of action.

The case was tried by the court without a jury. At the conclusion of appellant's evidence, on motion of appellee, judgment was rendered that appellant take nothing by his suit. No findings of fact or conclusions of law were requested by the parties or filed by the trial court.

While the statutes of this state impliedly invest a married woman with power to contract for necessaries for herself and children, and for such expenses as are incidental and necessary to the management and control of her separate property and such community property as the statutes commit to her charge, without the joinder of her husband (R.S.Articles 4614 and 4623, Vernon's Ann.Civ.St. arts. 4614, 4623; Service Parts Co. v. Bizzell, Tex. Civ.App., 120 S.W.2d 919, 923; Lee v. Hall Music Co., 119 Tex. 547, 551, 35 S. W.2d 685), the statutes do not give her the power to bind herself without the joinder of her husband to personal liability for debts other than those above enumerated. Lee v. Hall Music Co., supra.

Further, it has been uniformly held that one seeking to bind a married woman on a note or contract must bring his cause strictly within the statutes making her liable, and that the burden is upon him to establish the particular facts authorizing her to create the liability in question, for the reason that such facts cannot be presumed by reason of the fact that she did so contract. Martin v. Hays, Tex.Civ.App., 36 S.W.2d 796; Womack et ux. v. First National Bank of Anson, Tex.Civ.App., 81 S.W.2d 99.

In the instant case the undisputed facts clearly show that the cause of action asserted by appellant does not come within the provisions of any statute of this state under or by the provisions of which a married woman, not joined by her husband or not having her disability as a married woman removed, can be made liable.

The record shows that the note in question was executed by appellee in favor of her mother, Mary A. Wright, on February 6, 1934. At the time of its execution appellee resided in Boston, Massachusetts, and was married to Howard Locke Allen, who did not sign the note in question and who was not made a party to the suit. She remained his wife until the date of her divorce on June 22, 1934. There is no evidence in the record that would authorize a finding that appellee had been abandoned by her husband; that they were permanently separated, or that her disabilities as a married woman had been removed at the time of the execution of the note, nor is there...