Miller v. Brown

• Decision Date: 31 March 1871
• Citation: 47 Mo. 504
• Parties: ALEXANDER MILLER et al., Appellants, v. MATTIE BROWN et al., Respondents,
• Court: Missouri Supreme Court

47 Mo. 504

ALEXANDER MILLER et al., Appellants,

v.MATTIE BROWN et al., Respondents,

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Peacock & Cornwell, for appellants.

I. There can be no doubt that a married woman can charge her separate estate by verbal as well as by written contracts. The only difference is that the writing is the evidence and indicates her intention in the one case; while such intention, in the absence of an express statement of her intent to charge, has to be shown from circumstances. The reasoning in the case of Whitesides v. Cannon, if good to support a note merely signed by the wife, is certainly good to support her verbal contracts in equity as a charge against her separate estate. See on this subject 2 Ala. 338; 16 B. Monr. 375; Whitesides v. Cannon, 26 Mo. 457; 17 Ala. 803, 805-6.

II. It is a clear obligation which rests upon every husband to support his wife; that is, supply her with necessaries suitable to her situation and his own circumstances and condition in life. (Schouler's Dom. Rel. 76; 2 Kent's Com. 146.) But this obligation only goes to the extent of his own circumstances and condition in life.

Lackland, Martin & Lackland, for respondents.

The question has never been decided in this State as to whether a married woman can charge her separate estate by oral contract. The better opinion is that where it consists of real estate the contract charging it must be in writing. (Clark v. Miller, 2 Atk. 379.) Where there is no express charge on her real estate, then the intention to charge must be contained in the circumstances and facts of the transaction. That intention must be clear. (See Burch v. Breckinridge, 16 B. Monr. 482.)

BLISS, Judge, delivered the opinion of the court.

The plaintiffs seek to charge the separate estate of defendant Mattie Brown, a married woman, for goods sold her for her consumption. The goods, amounting to $145, were bought from time to time, and charged to her. She was introduced to the store as a woman of wealth, and, before this debt was contracted, had purchased several bills in her own name, which were always paid on presentation. This bill she promised to pay at different times, and after this suit was commenced asked for an extension of time, and agreed again to pay it. At no time--either when she was purchasing the goods embraced in this or other bills, or when they were presented in her own name, or when she had postponed at different times the payment of the one in controversy, either before or after the suit was commenced--did she make any allusion to her husband, or intimate that the goods were intended to be bought upon his account. The evidence is incontrovertible that the credit was given to her; that she purchased and intended to purchase for herself and with her own means, and the claim now set up that she intended to buy on the credit of her husband is clearly an after-thought. The plaintiffs sought to prove another fact, to-wit: the insolvency of the husband, and a very important one as bearing upon the main question, but were not permitted to do so. After the close of defendants' evidence the plaintiffs' salesman was recalled and asked whether he knew, at the time the debt in suit was contracted, what was the financial condition of Mr. Brown, and if so, whether he was solvent or insolvent? The question was objected to and ruled out, but the grounds of the objection were not stated. It might properly have been considered as out of time, as being part of the plaintiffs' case, although upon so material a point, and especially in an equity proceeding, it would have been a wise exercise of its discretion for the court, even then, to have permitted the question to be put. It was perhaps, however, ruled out as not material to the issue; if so, the court committed an error, for the known solvency or insolvency of the husband would have been a strong circumstance helping to show to whom the credit was given. It has another bearing upon a point hereafter considered, as showing whether or not these goods were necessaries adapted to the condition of the wife, and which the husband was unable to furnish; for, if he could not do so, so much the more would the wife look to her own separate estate for their supply.

The defense is threefold: first, that Mrs. Brown did not intend to charge her separate estate; second, the goods being necessaries which the husband was bound to furnish, it could not be so charged; and third, that it could not be charged by a verbal agreement.

Upon the question of intention, the preponderance of evidence is altogether in favor of the plaintiffs' claim; and if the insolvency of the husband had been shown, it would have been overwhelmingly so. The only contradictory evidence is in the testimony of Mrs. Brown. She says she did not intend to charge her separate estate, but did intend to charge her husband, and that what she bought were necessaries adapted to her condition in life; but she admits that she bought them in her own name, saying nothing about her husband; that he had been absent about two years, and that she lived from the rents of her own property, and states facts from which we infer that she lived in expensive style. If it had also appeared that her husband was insolvent and unable to pay the bills thus contracted, she would have made against herself a strong case of attempted fraud.

In contracting a debt it is not necessary that the wife say anything about her estate, or even that she have it specially in mind. The question is whether the contract was her own or that of her husband. If she make it for herself, in her own name, then her intention is presumed unless her acts at the time--as by the giving and acceptance of some other security in lieu thereof--show the contrary. A promissory note would clearly establish the contract to be hers; but if she furnish no such evidence, the fact that it was her own contract must be otherwise shown, and, when shown, the intention follows. Mrs. Brown's declaration, that she did not intend to charge her separate estate when running up a bill in her own name and upon her own credit, would not release her estate from the charge thereby created.

The law upon this subject has been often and fully discussed by members of this court, and it has always been held that, as to her separate property, a married woman is to be regarded as a femme sole, and is competent to make contracts or contract debts that shall bind it in equity, whether such property be named or referred to or not. (Coates v. Robinson, 10 Mo. 457; Whitesides v. Cannon, 23 Mo. 457; Tuttle v. Hoag, 46 Mo. 38; Schafroth v. Ambs, id. 114.) In Kimm v. Weippert, 46 Mo. 532, the circumstances were held to rebut the presumption of intention. The practical question, then, is not whether the femme covert expressly designs to charge her separate property, but whether she intends to contract a debt of her own; for if she does so, the law, and not her ideas about her property, fixes the liability. If she contracts upon her own credit, it is the credit of such property, for she has no other. This is antagonistic to the doctrine of the South Carolina cases, to some recent decisions in New York and elsewhere, but has long been the settled doctrine of this court.

Secondly, it is claimed that this rule can not apply to the purchase of necessaries which the husband should furnish. Whether the articles purchased are necessaries or not, is to be considered. The wife has a right, without her husband's consent, to charge him with their purchase, and this right may help to remove a doubt whether she was purchasing upon her own credit or his. But if she should give her own promissory note for the goods, I do not imagine that her right to buy in his name would make that note his contract, nor if the consideration were expressed in the note would it be any the less her agreement. Nor do I imagine, if the goods were simply billed, their character would conclusively show to whom the credit was given. In an...