Meier & Frank Co. v. Bruce

• Decision Date: 02 October 1917
• Court: Idaho Supreme Court
• Parties: MEIER & FRANK COMPANY, a Corporation, Respondent, v. ROSE MAY BRUCE, Appellant

168 P. 5

30 Idaho 732

MEIER & FRANK COMPANY, a Corporation, Respondent, v. ROSE MAY BRUCE, Appellant

Supreme Court of Idaho

October 2, 1917

CONTRACTS-VALIDITY OF A MARRIED WOMAN'S CONTRACT-CONFLICT OF LAWS-PUBLIC POLICY-APPEAL AND ERROR.

1. In this state the common-law disability of married women to enter into contracts still remains except when the same has been removed by legislative grants of power.

2. The disability of married women to enter into contracts has not been removed in this state, except where the married woman contracts for her own use or benefit or in reference to the management and control or for the use and benefit of her separate property.

3. The common-law disability of married women to contract in the state of Oregon has been entirely removed. (First Nat. Bank v. Leonard, 36 Or. 390, 59 P. 873.)

4. A contract entered into by a married woman in the state of Oregon, while there domiciled and to be performed therein, is a valid contract, and must be enforced by the courts of this state.

5. There is nothing wicked or immoral or contrary to public policy in permitting a wife's separate property to become liable for the payment of her husband's debts or community debts; nor is there anything in the statutes to indicate that the public policy of the state would be violated by enforcing a valid contract made by a married woman in a sister state.

[As to law of the place as controlling the validity of a married woman's contract, see note in 46 Am.St. 448]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.

Action on contract. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Oppenheim & Hodgin, for Appellant.

It is nowhere alleged in the complaint that the debt sued upon was incurred for the use and benefit of the separate estate of the appellant. The failure to so allege is fatal; no recovery can be had against a married woman without such an allegation and proof thereof. (McFarland v. Johnson, 22 Idaho 694, 127 P. 911; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497, 14 Idaho 75, 93 P. 504, 17 L. R. A., N S., 676; Strode v. Miller, 7 Idaho 16, 59 P. 893; Holt v. Gridley, 7 Idaho 416, 63 P. 188; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Dernham v. Rowley, 4 Idaho 753, 44 P. 643.)

Contracts such as are involved in this suit are governed by the lex fori. "The lex loci contractus governs as to the legality and construction of the contract, but the lex fori will not always enforce a contract because lawful where made. It will not be enforced by the courts of other states where the contract is against public morals or the public interest." (Spearman v. Ward, 114 Pa. 634, 8 A 430.)

"The public policy of a foreign jurisdiction may prevent the enforcement of a contract which the parties had capacity to make by the law of the place where it was made." (Elliott on Contracts, sec. 1129.)

The leading cases upholding the law of the forum with respect to the disability of married women upon this theory of public policy are: Armstrong v. Best, 112 N.C. 59, 34 Am. St. 473, 17 S.E. 14, 22 L. R. A. 188; Hayden v. Stone, 13 R. I. 106.

Whether or not a contract is valid by the law of the place where it is made, a creditor is only entitled to the remedies allowed by the forum; and where, according to the laws of the forum, the separate property of a married woman is not subject to attachment, a foreign creditor will not be allowed any different or any greater remedy than a citizen of the forum. (Ruhe v. Buck, 124 Mo. 178, 46 Am. St. 439, 27 S.W. 412, 25 L. R. A. 178; Minor on Conflict of Laws, p. 9, sec. 5 et seq.)

In all cases affecting the title to real property, either directly or indirectly, the law of the forum is the proper law. (5 R. C. L. 925, 926, 952; Thurston v. Rosenfield, 42 Mo. 474, 97 Am. Dec. 353; Thompson v. Kyle, 39 Fla. 582, 63 Am. St. 193, 23 So. 12; Bishop on Contracts, p. 573, sec. 1412.)

"The validity and effect of attachment proceedings must be determined by the laws of the state in which they are brought, provided that the property attached is within the jurisdiction of such state." (4 Cyc. 402.)

An attachment is a proceeding in rem. (Potlatch Lumber Co. v. Runkel, 16 Idaho 192, 18 Ann. Cas. 591, 101 P. 396, 23 L. R. A., N. S., 536.)

The rule that, if a certain right is given in one state as to property of a certain nature, comity requires that such right should be enforced in another state as to property of the same nature, is inapplicable to real property. (La Selle v. Wollery, 14 Wash. 70, 53 Am. St. 855, 44 P. 115, 22 L. R. A. 75; reversing 11 Wash. 337, 39 P. 663, 32 L. R. A. 73; Swank v. Hufnagle, 111 Ind. 453, 12 N.E. 303.)

"The capacity of a married woman to make contracts affecting her real estate must be determined by the law of the place where the real estate is situated." (Cochran v. Benton, 126 Ind. 58, 25 N.E. 870.)

Chas. M. Kahn, for Respondent.

In Oregon, all civil disabilities of a married woman are removed, and she is placed on an equal footing with her husband. (First Nat. Bank v. Leonard, 36 Ore. 390, 59 P. 873.)

"The validity of the contract of a married woman is generally to be determined by the law of the state where it is made." (21 Cyc. 1311; Armstrong v. Best, 112 N.C. 59, 34 Am. St. 473, 17 S.E. 14, 25 L. R. A. 188.)

"A contract made in one state which binds the separate estate of a married woman can generally be enforced in another state according to the laws of the former state." (21 Cyc. 1434; Wharton, Conflict of Laws, 3d ed., sec. 118; Minor on Conflict of Laws, sec. 72, p. 145; Bowles v. Field, 78 F. 742, 83 F. 886; Story on Conflict of Laws, 7th ed., sec. 103; Baer Bros. v. Terry, 108 La. 579, 92 Am. St. 394, 32 So. 353; Young's Trustee v. Bullen, 19 Ky. Law Rep. 1561, 43 S.W. 687; Garrigue v. Kellar, 164 Ind. 676, 108 Am. St. 324, 74 N.E. 523, 69 L. R. A. 870; Clark v. Eltinge, 38 Wash. 376, 107 Am. St. 858, 80 P. 556; Robinson v. Queen, 87 Tenn. 445, 10 Am. St. 690, 11 S.W. 38, 3 L. R. A. 214; Thompson v. Taylor, 66 N.J.L. 253, 88 Am. St. 485, 49 A. 544, 54 L. R. A. 585; Benton v. German-American Nat. Bank, 45 Neb. 850, 64 N.W. 227; Baum v. Birchall, 150 Pa. 164, 30 Am. St. 797, 24 A. 620; Mayer v. Roche, 77 N.J.L. 681, 75 A. 235, 26 L. R. A., N. S., 763; First Nat. Bank v. Mitchell, 92 F. 565, 34 C. C. A. 542; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Young v. Hart, 101 Va. 480, 44 S.E. 703; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251; Nichols v. Marshall, 108 Iowa 518, 79 N.W. 282.)

A contract is not necessarily contrary to public policy of Idaho merely because it could not validly have been made in this state. In order for one state to refuse to enforce the contracts of another, there must be something inherently bad about those contracts; something pernicious and injurious to the public welfare. (Greenhood on Public Policy, p. 46, Rule 64; Sutton v. Aiken, 62 Ga. 741; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; International Harvester Co. v. McAdam, 142 Wis. 114, 20 Ann. Cas. 614, 124 N.W. 1042, 26 L. R. A., N. S., 774.)

Contracts such as those sued upon are recognized as binding a wife's separate property even when brought in a state where the real property is situated, and where, under the laws of such state, the married woman could not enter into such contracts and bind her separate property. (Wharton, Conflict of Laws, 3d ed., p. 286, sec. 118c.)

RICE, J. Morgan, J., concurs. BUDGE, C. J., Dissenting.

OPINION

RICE, J.

Upon the argument of this case, it was conceded that between the fourth day of March, 1911, and the 10th day of September 1912, the appellant Rose May Bruce resided at Portland, in the state of Oregon, with her husband. During her residence in the state of Oregon respondent complains: First, that it sold and delivered to her and her husband certain family necessities, upon which a balance of $ 113.99 was still due and unpaid; second, that on the eighth day of August, 1911, in the state of Oregon, the said appellant with her husband executed a joint and several promissory note in the sum of $ 500, upon which a balance of $ 474.80 is still due and unpaid; third, that while appellant was in the state of Oregon she and her husband executed a joint and several promissory note in the sum of $ 250, which is still due and unpaid. Both of the promissory notes last mentioned were payable at the Bank of Kenton in Portland, Ore. On the tenth day of September, 1912, the appellant abandoned her residence in the state of Oregon and took up her residence in Boise, Idaho. On the sixth day of February, 1914, the respondent instituted an action against appellant in the district court for Ada county to recover the sums alleged to be due, and thereupon procured a writ of attachment to be issued against the property of the appellant in Ada county, Idaho. The appellant filed a general demurrer to each cause of action in that court, and also demurred specially upon several grounds, which although specified as error by the appellant were abandoned upon the argument and will not be discussed here. Appellant also filed a motion to quash the levy of attachment, upon the ground that the property levied upon was her sole and separate property and not subject to be levied upon in this action, there being no allegation in the complaint that the indebtedness therein sued upon was incurred for the use and benefit of the defendant's separate estate or for her own use and benefit. The trial court overruled the demurrers to the three causes of action presented to this court and also the motion to quash the levy of the writ of attachment. The case went to final judgment upon default of an answer, from which judgment this appeal...