Kerman's v. Strobhar

CourtUnited States State Supreme Court of Florida
Writing for the CourtBROWN, J.
Citation106 Fla. 148,143 So. 138
Decision Date12 July 1932
PartiesKERMAN'S et al. v. STROBHAR.

143 So. 138

106 Fla. 148

KERMAN'S et al.
v.
STROBHAR.

Florida Supreme Court

July 12, 1932


As Amended on Denial of Rehearing Oct. 19, 1932.

En Banc.

Suit by Mildred C. Strobhar against Kerman's, a foreign corporation, and another. From an adverse decree, defendants appeal.

Reversed and remanded.

BUFORD, C.J., and ELLIS, J., dissenting. [106 Fla. 149] Appeal from Circuit Court, Manatee County; W. T. Harrison, judge.

COUNSEL

D. R. Peacock, of Bradenton, Geo. L. King, of Sarasota, and Stewart & Ford, of Bradenton, for appellants.

W. B. Shelby Crichlow, of Bradenton, for appellee.

OPINION

BROWN, J.

Appellee, Mildred C. Strobhar, formerly a resident of Kansas City, Mo., and W. P. Strobhar were married in Detroit, Mich., in June 1925. Mr. Strobhar was a traveling representative of a large New York concern, but the record does not indicate that he had any permanent domicile until some time in September, 1925 (the exact date not being given), when he and his wife, according to their testimony, went to Palmetto, Manatee county, Fla., with the intention of residing there, and Mrs. Strobhar some two months later purchased a home there, paying a considerable sum, $18,500, thereon in cash, and taking a deed to the property in her name, on November 28, 1925. In the home so purchased she and her husband [106 Fla. 150] resided up to the time of the filing of her bill in 1928, the purpose of which was to have two certain judgments which had been rendered against herself and husband held null and void as against her and removed as clouds on her title to the above-mentioned property. From a decree granting her the relief prayed for in said bill, this appeal was taken by the two defendants, being the two foreign corporations in whose favor the judgments had been respectively entered.

On September 9 and 29, 1925, Mr. and Mrs. Strobhar together visited the store of Kerman's a corporation, in Chicago, Ill., and purchased certain articles of wearing apparel for Mrs. Strobhar, leaving an account due Kerman's of $350. On November 12 and 13, 1925, they went to the store of Spaulding & Co., a corporation, in the same city, and purchased certain articles of jewelry, amounting to $9,195.50. These accounts were not paid, and in October, 1926, the Kerman's corporation recovered a judgment in the county court of Manatee county, Fla., against Mr. & Mrs. Strobhar for $354.67 and costs, and in March, 1927, Spaulding & Co. also recovered a judgment against them in the circuit [143 So. 139] court for Manatee county for $9,440.51 and costs. These two judgments were based upon the accounts created for the purchases above referred to. It appears that personal service of process was had upon each of the Strobhars in both actions; that they filed appearances therein, but interposed no defense and filed no pleadings in either action, and allowed judgments by default and final judgments to be entered against them in due course, without opposition, in both actions.

The bill filed by Mrs. Strobhar about a year later avers that said judgments are each void and of no effect, because based on accounts created subsequent to her marriage, and that, when the judgments were obtained, she was a married [106 Fla. 151] woman, whose disabilities of coverture had not been removed, and that said judgments constituted clouds on her separate property which interfered with the sale and disposition thereof. The demurrer of the defending judgment holders to the bill as finally amended was overruled, and the defendants filed their joint and separate andswers, alleging, among other things, that the contracts on which the judgments were based were made and payable in Illinois, where the complainant had full legal capacity to make such contracts and to bind herself personally therefor as if she were a feme sole and that she did, under the law of Illinois, become personally liable for the amount due under said contracts. A certified copy of the Illinois statute was introduced in evidence, which appears to sustain this allegation, and there was also evidence introduced as to the articles purchased and the sales prices. The answer further alleges that complainant has and still retains the consideration, fruits, and advantages of such contracts, liability for which she now seeks to avoid. On final hearing, the chancellor rendered a decree in favor of the complainant, and granted the relief prayed for.

While our Constitution and statutes have made some changes in the ancient common-law principles respecting the disabilities of married women, the common law rule that a feme covert is not competent to enter into a contract so as to give a personal remedy against her, has been left undisturbed and in full force in this state (Lewis v. Yale, 4 Fla. 418; First Nat'l Bank v. Hirschkowitz, 46 Fla. 588, 35 So. 22; Blood v. Hunt, 97 Fla. 551, 121 So. 886, and cases cited), except as to married women who have been made free dealers pursuant to the statute (sections 5024-5028, Comp. Gen. Laws). We are not directly concerned in this case with the power of a married woman to make a valid mortgage or sale of her separate property, or [106 Fla. 152] the power of courts of equity to charge the separate real or personal property of a married woman and sell the same for certain purposes, such as 'the purchase money thereof,' or for 'the price of any property purchased by her,' as provided in sections 1 and 2 of article 11 of the Constitution, but one effect of our constitutional provisions and statutory enactments is that the contracts of married women, even when not enforceable against them personally, are not always wholly null and void. Nadel v. Weber Bros. Shoe Co., 70 Fla. 218, 70 So. 20, L. R. A. 1916D, 1230; Frosen v. Capo, 88 Fla. 236, 102 So. 158; Equitable B. & L. Ass'n v. King, 48 Fla. 252, 37 So. 181; Sumner v. Osborne, 101 Fla. 742, 135 So. 513. Thus, this court has held that money paid to a married woman upon a contract for the purchase of real estate, not executed as required by the statute, where she refuses to perform the contract and convey the property and also refuses to return the money, may, by a court of equity, be required to be returned by her or decreed to be a lien on her property; that she cannot retain the money and refuse to perform the contract. Vance v. Jacksonville Realty & Mortgage Co., 69 Fla. 33, 67 So. 636; Wheeler v. Sullivan, 90 Fla. 711, 106 So. 876; Schmidt v. Kibben, 100 Fla. 1684, 132 So. 194. Nor may a purchaser from a married woman breach the contract and charge the property in equity for a partial payment thereon, in the absence of a showing that the married woman was unwilling or unable to complete the contract to convey. Shields v. Ensign, 68 Fla. 522, 67 So. 140. Likewise, when a married woman engages to purchase...

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2 practice notes
  • Kellogg-citizens Nat. Bank of Green Bay, Wis. v. Felton
    • United States
    • United States State Supreme Court of Florida
    • 19 November 1940
    ...free dealer under the laws of Florida when the notes were executed. See Blood v. Hunt, 97 Fla. 551, 121 So. 886. In Kerman's v. Strobhar, 106 Fla. 148, 143 So. 138, Mr. Justice Brown ably discusses the law and authorities in cases of this nature, with the result in that case that final judg......
  • Tanner v. Overstreet Inv. Co.
    • United States
    • United States State Supreme Court of Florida
    • 4 April 1934
    ...married woman upon such contract may be required to be returned or decreed to be a lien upon her property. Kerman's et al. v. Strobhar, 106 Fla. 148, 143 So. 138; Schmidt v. Kibben, 100 Fla. 1684, 132 So. 194; Wheeler v. Sullivan, 90 Fla. 711, 106 So. 876; Vance v. Jacksonville Realty & Mor......
2 cases
  • Kellogg-citizens Nat. Bank of Green Bay, Wis. v. Felton
    • United States
    • United States State Supreme Court of Florida
    • 19 November 1940
    ...free dealer under the laws of Florida when the notes were executed. See Blood v. Hunt, 97 Fla. 551, 121 So. 886. In Kerman's v. Strobhar, 106 Fla. 148, 143 So. 138, Mr. Justice Brown ably discusses the law and authorities in cases of this nature, with the result in that case that final judg......
  • Tanner v. Overstreet Inv. Co.
    • United States
    • United States State Supreme Court of Florida
    • 4 April 1934
    ...married woman upon such contract may be required to be returned or decreed to be a lien upon her property. Kerman's et al. v. Strobhar, 106 Fla. 148, 143 So. 138; Schmidt v. Kibben, 100 Fla. 1684, 132 So. 194; Wheeler v. Sullivan, 90 Fla. 711, 106 So. 876; Vance v. Jacksonville Realty & Mor......

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