Ness v. Coffer

• Decision Date: 13 October 1925
• Citation: 244 P. 145,42 Idaho 78
• Parties: LENA NESS, Respondent, v. JULIETTE COFFER, Appellant
• Court: Idaho Supreme Court

244 P. 145

42 Idaho 78

LENA NESS, Respondent, v. JULIETTE COFFER, Appellant

Supreme Court of Idaho

October 13, 1925

PLEADING AND PRACTICE-CONTRACTS OF MARRIED WOMEN.

1. The common-law disability of a married woman to enter into contracts still remains in this state except where it has been removed by legislative grant of power, and this disability has not been removed except where a married woman contracts for her own use and benefit or in reference to the management and control or for the use and benefit of her separate property.

2. In order to charge the separate property of a married woman or render it liable to levy and sale for an indebtedness contracted by her, it must be alleged in the complaint and proven that the debt was incurred for her own use and benefit or in reference to the management and control or for the use and benefit of her separate property.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action to recover rent. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Petition for rehearing denied.

Cox &amp Martin, for Appellant.

There is no allegation in the pleadings that defendant is a married woman and that she incurred this obligation for her own use and benefit or for the use and benefit of her separate estate. Without such an allegation plaintiff cannot recover. (Holt v. Gridley, 7 Idaho 416, 63 P. 188; 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; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Dernham & Kaufmann v. Rowley, 4 Idaho 753, 44 P. 643; Meier & Frank Co v. Bruce, 30 Idaho 732, 168 P. 5.)

The burden was on the plaintiff to show that the property here involved was the separate property of defendant and that the obligation was her separate obligation. (Vaughan v. Hollingsworth, 35 Idaho 723, 208 P. 838; Clifford v. Lake, 33 Idaho 77, 190 P. 714; Hall v. Johns, 17 Idaho 224, 105 P. 71.)

Tannahill & Leeper, for Respondent.

This case is squarely within the decision of Edminston v. Smith, 13 Idaho 645, 121 Am. St. 294, 92 P. 842, 14 L. R. A., N. S., 871.

"The rights of the married woman to contract have been greatly enlarged by our statute, and her rights to contract are prescribed by the statute and not by the rules of the common law." (Overland Nat. Bank v. Halveston, 33 Idaho 489, 196 P. 217; Hall v. Johns, 17 Idaho 224, 105 P. 71; Boise Butcher Co. v. Anixdale, 26 Idaho 483, 144 P. 337; Booth Mercantile Co. v. Murphy, 14 Idaho 212, 93 P. 777.)

"The general rule is that coverture, in order to be made available as a defense to a suit on contract, must be pleaded, at least where plaintiff's pleading does not show that defendant is a married woman, and that if defendant fails to interpose her disability as a defense, it will be taken as waived." (30 C. J., p. 1013, par. 774; Belcer v. Polly, 32 Ky. L. Rep. 623, 106 S.W. 818; Union Stockyards National Bank v. Lamb, 92 Neb. 608, 139 N.W. 216.)

WILLIAM A. LEE, C. J. William E. Lee and Budge and Taylor, JJ., concur. GIVENS, J., Dissenting.

OPINION

WILLIAM A. LEE, C. J.

This action was commenced in the justice's court by respondent Lena Ness, as administratrix of the estate of Mathew S. Ness, deceased, against Juliette Coffer, a married woman, to recover a money judgment. The complaint, so far as material here, alleges that "The defendant is indebted to the plaintiff for rent of that certain storeroom, No. 823 Main Street, in Lewiston, Idaho, from February 1, 1923, to April 1, 1923, at the rate of $ 75 per month aggregating the sum of $ 225 which said sum the defendant promised and agreed to pay, etc." There is no allegation that appellant is a married woman or that the debt was incurred for her own use or benefit or in reference to the management and control or for the use and benefit of her separate property.

C. S., sec. 7072, provides that pleadings in justices' courts are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended, and may, except the complaint, be oral or in writing, and if oral, an entry of their substance must be made in the docket. In the instant case the answer was a general denial entered in the docket and upon appeal to the district court the cause was tried upon these pleadings. During the trial it was shown that at the time appellant is alleged to have made this agreement, she was a married woman engaged in the practice of osteopathy, and resided with her husband at their home in Lewiston. At the close of the evidence appellant moved for an instructed verdict on the grounds: First, that the evidence did not show that a contract had been made by appellant for the payment of this rental; second, that if any agreement to pay is shown, it is an agreement to answer for the debt of another and is within the statute of frauds and has not been proven by competent evidence; third, that if any contract to pay rental is shown, it is not alleged or proven that the contract was made with reference to or for the benefit of defendant's separate estate. The court denied the motion and after instructing the jury, the cause was submitted to it. In its oral instructions, the court, among other things, in effect said that the testimony shows defendant Juliette Coffer is, and was at the time of the transaction complained of, a married woman, and being a married woman if they found that any debt was created by defendant they must also find that it was for her own use and benefit or for the use and benefit of her separate estate, that she would not be liable for any debt contracted by her husband, nor for any debt not contracted by her for the use and benefit of her separate estate. The jury returned a verdict for $ 225, the amount prayed for, although it is apparent that the rental from February 1, 1923, to April 1, 1923, at the rate of $ 75 per month could not aggregate $ 225.

Upon judgment being given for this amount the cause was appealed to this court. The assignments of error raise substantially the same questions presented by appellant's motion for a directed verdict. The principal one being that if it had been shown that appellant Dr. Coffer made any contract; which she denies, it is not alleged or proven that it was made with reference to, or for her separate estate, and that at the time this contract is alleged to have been made and long prior thereto she was a married woman living with her husband.

The question thus presented by this appeal is what is necessary to be alleged and proved in order to recover against a married woman upon her contracts. If appellant had been a feme sole it is clear the complaint would state a cause of action against her. The answer being a general denial does not affirmatively put in issue the question of appellant being a married woman, or of the debt, if any, having been contracted for her own use and benefit or with reference to her separate estate. The court instructed the jury that at the time of contracting this indebtedness appellant was a married woman living with her husband. This fact is not controverted by respondent, who appears to rely upon the rule as stated in 30 C. J. 1013, sec. 774. This authority states that the general rule is that coverture, in order to be made available as a defense to a suit on contract, must be pleaded, at least where plaintiff's pleading does not show that defendant is a married woman, and that, if a married woman failed to interpose her disability as a defense, it will be taken as waived. Counsel for respondent also rely upon Edminston v. Smith, 13 Idaho 645, 121 Am. St. 294, 92 P. 842, 14 L. R. A., N. S., 871; McFarland v. Johnson, 22 Idaho 694, 127 P. 911, and Overland Nat. Bank v. Halveston, 33 Idaho 489, 196 P. 217.

With regard to Edminston v. Smith, supra, the most that can be claimed for that case is that where necessaries are furnished the wife upon her special contract and upon her personal responsibility to pay therefor, she can be held to pay the debt and to that end may be sued as a feme sole. In such case the debt is incurred for her use and benefit but the primary duty rests on the husband, by reason of the marital contract and operation of law, to furnish the wife with necessaries. A creditor who furnishes such necessaries may also maintain an action against the husband although the husband did not contract the debt.

We think that neither the McFarland v. Johnson case nor the Bank v. Halveston case support respondent's position that coverture in order to be available as a defense must be pleaded and if not so pleaded may be taken as waived.

In McFarland v. Johnson the action was to recover upon a promissory note executed by Sarah S. Johnson to John Adolph Johnson. The complaint alleged that the note had been sold and transferred to appellant prior to the commencement of the action, for a valuable consideration. The answer merely denied the execution of the note and its sale and transfer to appellant. After citing with approval the rule as announced in Strode v. Miller, 7 Idaho 16, 59 P. 893, as to what must be alleged and proved in order to recover against a married woman on her contracts, the court quotes from Holt v. Gridley, 7 Idaho 416, 63 P. 188, the following:

"Where it is sought to make the separate property of a married woman liable for debt, it must be alleged and proved that the debt is her own, or made on behalf of her separate property."

The court, in the McFarland-Johnson case, also says:

"We find the complaint does not in any way allege that the respondent is a married woman, or was at the time...