Martin v. First Nat. Bank of Hattiesbubg

Citation176 Miss. 338,164 So. 896
Decision Date06 January 1936
Docket Number31664
CourtUnited States State Supreme Court of Mississippi

Division A

Suggestion Of Error Overruled October 19, 1936.

APPEAL from chancery court of Forrest county HON. T. PRICE DALE Chancellor.

Action by the First National Bank of Hattiesburg against John M Martin, Mrs. D. M. Watkins and others. From an adverse decree, the defendants appeal. Reversed and rendered as to Mrs. D. M. Watkins and affirmed and remanded as to other defendants.

Reversed, and decree here for appellant Mrs. Watkins; affirmed and remanded as to Martins.

Watkins & Eager, of Jackson, and D. M. Watkins and T. J. Wills, both of Hattiesburg, for appellant.

An assignee cannot recover from debtors of the assignor when the assignor has contracted to and has performed gratuitously the services to the alleged debtors prior to any notice of the assignment.

Section 506, Code of 1930; Griffith's Mississippi Chancery Practice, page 587; Crichton v. Halliburton & Moore, 154 Miss. 265, 122 So. 200.

It is entirely settled in Mississippi that a written contract can be modified by parol.

Insurance Co. v. Odom, 56 So. 379, 100 Miss. 219; Construction Co. v. Delta & Pine Land Co., 141 So. 757, 163 Miss. 646; Ins. Co. v. Sheffy, 71 Miss. 923; New Orleans Ins. Assn. v. Mathews, 65 Miss. 301, 4 So. 62; Phoenix Ins. Co. v. Bowdre, 67 Miss. 620, 7 So. 596; Home Ins. Co. v. Scales, 71 Miss. 975, 15 So. 134; Home Ins. Co. v. Gibson, 72 Miss. 58, 17 So. 13; American Fire Ins. Co. v. First Nat'l Bank, 73 Miss. 469, 18 So. 931.

A written contract may, in the absence of statutory provisions requiring a writing, be modified by a subsequent oral agreement.

13 C. J., pars. 609-616.

The construction of special contracts between attorneys and their clients as to compensation is to be governed by the usual rules relating to the construction of agreements generally, regard always being had to the character of the relation between the parties.

6 C. J. 738.

It is the position of appellants here that, first, the later oral modified contract is valid and binding, even had it been entirely without consideration, since it is completely executed and was completely executed at the time of the assignment and at the time of the notice thereof to defendants.

McCall v. Nave, 52 Miss. 494; Clayton v. Clark, 74 Miss. 499, 21 So. 566; Greener & Sons v. Cain & Sons, 101 So. 859, 137 Miss. 33.

The real rule is that the oral contract when made was voidable not void, and that when the attorney here performed a contract voidable by him, the defect of lack of consideration was cured.

6 R. C. L., 591, par. 10, and 917, par. 301; Walker v. Allendale Land Co., 132 So. 904; Smith v. State Industrial Accident Com., 23 P.2d 904, 25 P.2d 1119; State v. American Surety, 2 P.2d 1116; Fuller v. Mann, 6 P.2d 999; Julian v. Gold, 3 P.2d 1009; Vigelius v. Vigelius, 13 P.2d 425; Cockrell v. McKenna, 134 A. 687; Bowman v. Wright, 91 N.W. 580, 92 N.W. 580; Sapp v. Lifranc, 36 P.2d 795.

Where services, when performed, are expressly or impliedly gratuitously performed, there can be no recovery therefor, even if the recipient of the services later agrees to so compensate the one rendering the service.

Strevell v. Jones' Estate, 94 N.Y.S. 627; In re Pinkerton's Estate, 99 N.Y.S. 492.

Moreover, there could be no recovery for labor and services performed on the basis of benefits accruing to the defendants because of the services. There can be no recovery on an implied contract because of the beneficial nature of the consideration. In other words, there could be no recovery here in assumpsit where the one performing the services agreed to perform them gratuitously.

5 C. J. 1385; Municipal Waterworks Co. v. City of Ft. Smith, 216 F. 438.

There would never be an implied promise on the part of a wife to pay her husband for services.

In the absence of an express agreement to pay, the wife is not liable to pay wages or salary to the husband for services rendered by him in connection with her separate property or business; there is nothing to prevent the husband from rendering services gratuitously.

30 C. J. 682; Bailey's Admr. v. Hampton Grocery Co., 224 S.W. 1067.

Plaintiff assignee cannot recover herein because any contract by which the assignor would receive compensation for services rendered to the defendant is entirely void.

Section 1943, Code of 1930.

Even if section 1943 were not written in our books, this court would undoubtedly follow the general rule and hold that husbands and wives could not contract with each other for labor and services which were due to each other because of the marital relationship. If this was all that section 1943 meant, it would be entirely unnecessary. The statute need not have been written. At the time that these statutes were passed there was a conflict among the cases as to whether, under general statutes removing the disabilities of coverture, a husband and wife could contract with each other for labor and services in regard to their individual businesses. The evident purpose of the Legislature was to resolve this conflict as far as Mississippi was concerned, and to once and for all, in statutory form, establish the rule that under no conditions could husband and wife contract with each other for any compensation or any work, labor or services rendered for each other.

30 C. J., Husband & Wife, page 669, sec. IV; Dillare & Coffin Co. v. Woollard, 124 Miss. 677, 87 So. 148; Clarksdale Building & Loan Assn. v. Levy Commissioners, 150 So. 783, 168 Miss. 326; Switzer v. Kee, 35 N.E. 160; Overbeck v. Ahlmeier, 106 Ill.App. 606; Miller v. Smith, 137 Ill.App. 467; Turner v. Davenport, 47 A. 766, 49 A. 463; Butler v. Ives, 29 N. B. 654; Ricker v. Ricker, 143 N.E. 539; Peoples Trust Co. v. Merrill, 99 A. 650.

We submit that while in states having enabling statutes, it is held that husbands and wives can contract with each other for services not due because of marital relation, it is equally clear that in states where there are additional statutes prohibiting contracts between husbands and wives, they are making exceptions to the powers of women to contract; that these prohibitions against contracts for services between husbands and wives, or for contracts between husband and wife at all, are strictly construed. We submit that the language of section 1943 is unambiguous and clear, and that insofar as any contract between any husband and wife for any labor, work or services refers to any compensation therefor between them, the same is entirely void.

The Mississippi Legislature has not prohibited any contracts between husband and wife. They are free to contract about their personal property and any other matter with one restraint thereupon, namely, that when they contract for services due each other, they cannot make an executory contract in regard to compensation therefor. A husband and wife can contract with each other for services; they may become each other's agents; they may pay each other therefor, and the executed contract is valid. It is only when there is an executed promise between husband and wife to pay each other compensation for services rendered to each other that the Legislature has put a restraint thereupon. If, therefore, this restraint is based upon any valid reasoning or any public policy of the state, this is a regulation and not a prohibition of contracts between husbands and wives.

Wyatt v. Wyatt, 81 Miss. 219, 32 So. 317; Ex parte Lewinsky, 63 So. 517, 50 L. R. A. (N. S.) 1156; Ex parte Ferguson, 141 P. 322; City of Butte v. Paltrovich, 75 P. 521, 30 Mont. 18, 104 Am. St. Rep. 698; Rem. & Bal. Code, sec. 7507; City of Tacoma v. Keisel, 124 P. 137, 68 Wash. 685, 40 L. R. A. (N. S.) 757; Dart v. City of Gulfport, 147 Miss. 534, 113 So. 441.

We therefore submit that since the Legislature has not prohibited contracts between husband and wife, but has merely restricted them in one particular--namely that when the contracts call for executory consideration for services rendered to each other they shall be void-- that this is within the power granted to the Legislature by section 93 of the Constitution.

This contract between husband and wife being therefore void, the entire contract is void and unenforceable. There is nothing in the record that would show that the contract was severable as between the defendants. There is nothing in the record to show that the services of the assignor were not to be for his wife alone and the services of the other attorney for the other parties. The record shows that the wife was to recover almost half of the sum recoverable under the prior law suit.

It is a settled principle of law that where any part of a single consideration is illegal, the promise, is wholly void.

13 C. J. 513-514.

Stevens & Currie, of Hattiesburg, for appellee.

The contract of employment involved was in writing and cannot be contradicted by parol testimony.

Wren v. Hoffman, 41 Miss. 619; Baum v. Lynn, 72 Miss. 922, 18 So. 428; Millburn Gin & Machine Co. v. Ringold, 19 So. 676; Chicago Bldg. & Mfg. Co. v. Higginbotham, 29 So. 79; Cocke v. Blackbourn, 58 Miss. 539; English v. N. O. & N. E. R. R. Co., 100 Miss. 581.

A deed conveying property may not be varied by prior, contemporaneous, or subsequent oral agreement.

Kilpatrick v. Kilpatrick, 23 Miss. 128; Nixon v. Porter, 38 Miss. 413.

When parties have deliberately put their engagements in writing, it is conclusively presumed that the whole contract, and the entire extent of their undertakings, were reduced to writing; and oral testimony of a previous, contemporaneous or subsequent colloquium is rejected, as it would tend to substitute a new contract for the one really agreed on.

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