Larson v. Carter

• Decision Date: 14 March 1908
• Citation: 94 P. 825,14 Idaho 511
• Parties: JOHN LARSON et al., Respondents, v. KATE CARTER, Appellant
• Court: Idaho Supreme Court

94 P. 825

14 Idaho 511

JOHN LARSON et al., Respondents, v. KATE CARTER, Appellant

Supreme Court of Idaho

March 14, 1908

OPEN BOOK ACCOUNT-AGAINST HUSBAND-HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-IMPROVEMENTS THEREON-HUSBAND'S RIGHT TO ERECT-ADMISSION OF EVIDENCE-RIGHT OF WIFE TO DEFEND-HUSBAND IN DEFAULT-ASSIGNMENT OF ACCOUNT-CREDIT GIVEN TO HUSBAND-CREDIT TO WIFE.

1. Where an indebtedness is contracted by the husband and the credit given to him, the wife cannot be held liable therefor even though the indebtedness was created for the erection of a building on the separate estate of the wife.

2. Under our statutes, as they existed at the time the indebtedness sued on in this action was made, the husband had the management and control of the separate estate of the wife, but he had no authority to erect a building on her separate real estate, and thereby bind the wife and create a lien on such real estate without her consent.

3. The husband's authority under the statute to manage and control her separate real estate did not authorize him to make contracts for its improvement without her consent, and such authority will not be implied from the marital relation.

4. Held, that the court erred in not admitting all evidence offered by the appellant showing or tending to show that the husband contracted the debt sued on herein without her knowledge and consent.

5. Under the provisions of sec. 4094, Rev. Stat., if a husband and wife be sued together, the wife may defend in her own right, and if the husband neglects to defend, she may defend for him also, and may testify in such action in regard to the contract sued on.

6. Where a husband contracts an indebtedness and credit is given to him solely, a wife cannot be held liable therefor.

(Syllabus by the court.)

APPEAL from the District Court of the Fifth Judicial District for Oneida County. Hon. Alfred Budge, Judge.

Action to recover on open book account. Judgment for plaintiff. Reversed.

Reversed and remanded. Costs awarded to the appellant.

Gray &amp Boyd, for Appellant.

Sec 4094, Rev. Stat., provides: "If a husband and wife be sued together, the wife may defend her own right, and if the husband neglects to defend, she may defend for his right also." (Stowell v. Tucker, 7 Idaho 312, 62 P. 1033.)

The husband may become the agent of his wife to make a contract for the improvement of her real estate, but his authority to so act is not implied from the marital relations. (Hoffman v. McFadden, 56 Ark. 217, 35 Am. St. Rep. 101, 19 S.W. 753.)

A family account cannot be charged against the wife's separate property. (Chaffee v. Browne, 109 Cal. 211, 41 P. 1028.)

Debts contracted by the husband for his own benefit, or for the use and benefit of the family of which he is the head, cannot expose the separate property of the wife to levy and sale. (Dernham v. Rowley, 4 Idaho 753, 44 P. 643; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover on a promissory note and an open book account, which causes of actions had been assigned to respondent by Parkinson & Co. The complaint sets up two causes of action, the first on the promissory note, and the second on book account for money advanced, and for goods, wares and merchandise sold and delivered. At the close of the testimony of the plaintiffs, the defendant, Kate Carter, moved for a nonsuit on both causes of action, upon the grounds, first, that it was not proven that said promissory note was executed by her for the benefit of her separate estate, and, second, that the second cause of action was not an account against her, but was charged on the books of the respondents against George D. Carter, and the credit was extended to him. The court took said motion under advisement and required the defendant, Kate Carter, to put in her testimony, and thereafter the plaintiffs moved to amend their complaint, which motion was granted after the adjournment of that term of court. The court also sustained a motion for nonsuit as to the first cause of action, and denied the motion as to the second cause of action, and made its findings of fact and conclusions of law, and entered judgment against the appellant for $ 359.47, with interest and costs of suit. This appeal is from the order denying a new trial. The appeal from the judgment was dismissed on the ground that it was not taken within a year from the entry of the judgment.

The action of the court in permitting an amendment to the complaint after the term had adjourned at which said cause was tried is assigned as error. As the judgment will have to be reversed, it is not necessary for us to decide that question.

The action of the court in denying a motion for a nonsuit as to the second cause of action is assigned as error. It appears from the record that the appellant and George D. Carter are husband and wife and are sued jointly herein, and during the time said account was made were residing together upon the farm of the appellant. A copy of said account against George D. Carter was introduced in evidence over the objection of the appellant. It appears from that account that it is charged against said George D. Carter, the husband of appellant, the first item of which is dated October 12, 1898 and the last, September 17, 1900. It is an open book...