Peck v. Marling's Adm'r.

• Decision Date: 24 November 1883
• Citation: 22 W.Va. 708
• Court: West Virginia Supreme Court
• Parties: Peck v Marling's Adm'r.

22 W.Va. 708

Peck v Marling's Adm'r.

Supreme Court of Appeals of West Virginia.

Submitted June 7, 1883

Decided November 24, 1883.

1. The legal disability of a married woman living separate and apart

from her husband to enter into any contract is removed by section 13, chapter 66 of Code of W. Va., p. 449. (p. 711.)

2. Such a married woman may be sued on any contract, which she

may enter into, in a common law court, whether she had, when she made the contract, any separate estate or not. (p. 714.)

8. A husband is not liable to be sued by the attorney for the wife in a suit to obtain a divorce a vinculo matrimonii, nor in a suit to obtain a divorce a mensa et thoro because of his abandonment or desertion of her; but he is liable to such a suit, if the suit was for a divorce a mensa et thoro because of his actual cruelty or because of apprehension on her part of bodily hurt, and she succeeded in the suit. (p. 716.)

4. If a wife living separate and apart from her husband employs an

attorney to bring a suit to obtain for her a divorce, which he does and succeeds in the suit, he may sue her in assumpsit on her implied promise to pay what his services are reasonably worth, whenever her husband could not under the third syllabus be sued by him for such services; but he can bring no suit against her on such implied promise, where under the third syllabus he would have such action against her husband, (p. 720.)

5. But even where he would have had such an action against her

husband, yet, if such married woman, when she employs such attorney to bring such a suit, expressly though verbally promises him, that she will pay his fees, and he looks to her alone for the payment of his fees and every part of them, he may sue her on such express contract. She is liable if by the express contract he gave credit to her alone; but if to any extent he gave credit to her husband, he can not recover on such contract in a suit against her. (p. 721.)

6. The plea of plene administravit in an action against a personal

representative on a debt of the testator or intestate tenders, as the statute-law now is in this State, an immaterial issue; and the court ought not to permit it to be tiled and, if filed, should strike it from the record, (p. 726-732.)

7. To a declaration in assumpsit on common counts the defendant

pleads, that when the promises and undertakings named in the declarations were made, she was a married woman. To this the plaintiff may reply, that when such promises and undertakings were made, the defendant was living separate and apart from her husband; and such replication is good. (p. 724-735.)

Green, Judge, furnishes the following statement of the case:

Daniel Peck at the July rules, 1879, in the county court of Ohio county filed his declaration in assumpsit against J. E. McKennan, administrator of Mary Marling, deceased. The declaration contained only the common counts, and with it was filed a bill of particulars as follows:" June 1, 1875, to services rendered in the case of said Maty Marling against Elijah Marling, her husband, for divorce from bed and board, commenced by filing the bill on the 23d clay of October, 1872, the plaintiff succeeding and died abou: the first of September, 1875, three hundred dollars. Received seventy-five dollars by decree and paid out for costs and expenses twelve dollars and sixty cents, leaving to be credited sixty-two dollars and forty cents; balance due two hundred and thirtyseven dollars and sixty cents, add interest from the first day of June, 1875, sixteen dollars and forty cents, leaving total balance due two hundred and fifty-four dollars." This bill of particulars was on August 2, 1876, sworn to by the plaintiff as just. The declaration was demurred to, but it was in the usual form and good. The plea of non-assumpsit was filed and issue was joined upon it. There was also filed a plea of the coverture of the defendant's intestate, Mary Marling, when the promises and understandings in the declaration mentioned were made, and that till the time of her death she continued to be the wife of Elijah Marling, and also a plea of no assets to be administered, to the first of which pleas the plaintiff replied, that the causes of action named accrued to him as counsel of said Mary Marling in her lifetime in prosecuting a suit in the circuit court of Ohio county in chancery by said Mary Marling against Elijah Marling, her husband, for a divorce from him; and that, at the time said services were rendered, she, the said Mary Marling, was living separate and apart from her husband, and by the decree of said court she obtained a divorce from her said husband. To this replication the defendant demurred, and issue was joined upon the demurrer. To the last special plea the plaintiff replied by traversing the same; and issue was joined thereon. The demurrer to the replication to the first of these special pleas was sustained; and the demurrer to the replication to the last of these special, pleas was overruled. The case Avas then properly removed to the circuit court of Ohio county; and on June 6, 1881, it entered the following judgment:

"This cause came on to be heard upon the pleadings in the. ease and on the motion of the plaintiff that the court proceed to render final judgment herein, to which the defendant objects, the court being informed by the plaintiff that he had no other replication to make to the second plea of the defendant to the declaration of the plaintiff, it is here considered and adjudged by the court that the defendant go hence without day and recover his costs in this behalf expended against the plaintiff."

From the judgment of the county court of April 1, 1880, sustaining the demurrer to the first of these special replications and to the judgment of the circuit court the plaintiff obtained an appeal and supersedeas to this Court,

Daniel Deck for plaintiff in error.

W. P. Hubbard for defendant in error.

Green, Judge:

The principal question involved in this case is whether the county court erred in sustaining the demurrer to the replication of the plaintiff to the plea of the defendant, that his intestate,.was, at the time. of making the contract sued on, a married woman. The plaintiff in error claims that the replication alleged substantially, that she was then living separate and apart from her husband. Admitting for the present tor argument's sake that this is the correct interpretation of this replication, ought the county court to have sustained the demurrer to it? It may be regarded as settled law in this State, that the plea of coverture, when the contract was made, is a good plea in bar to any action brought on any contract. (Stockton v. Farley',.10 W. Va. Rep. and also Carey & Co. v. Burruss & Pitzer, 20 W. Va 571.) We are now to determine whether a replication to such a plea, that she was at the time the contract was made living separate and apart from her husband, is good. It is well settled in this State by the decisions, that a married woman living with her husband is in all cases utterly incapable of making any contract, which a court, of law would regard as binding upon her. Such a contract is absolutely null and void as against her in a court of law.

The question now is: Would the fact, that, when the contract was made, she was living separate and apart from her husband, vary the case and render such contract valid against her in a court of law? At common law her contract would in a court of law be regarded as invalid and null as against her, when made while living separate and apart from her husband, precisely as it would be if she were living with him; and the only question to be considered is whether this legal incapacity to make any contract binding on her, which the common law imposed on every married woman, has been removed in this State by statute-law. If it has been so removed, it must have been by section 13 of chapter 66 of the Code of West Virginia, pages 449 and 450, which is as follows: "A married woman living separate and apart from her husband may in her own name carry on any trade or business; and the stock or property used in such trade, and the issues and profits thereof, together with her own earnings, realized from such trade or business, shall be her sole and separate property, and shall not be subject to the control of her husband nor liable for his debts."

Does this section remove the incapacity, which the common law imposed on a married woman living separate and apart from her husband to make any contract binding on her? If it does, a common law court should recognize as valid against her a contract made by a married woman when living separate and apart from her husband, otherwise, it should not. This section does not expressly remove such incapacity from such married woman. Does it do so by implication? We ought not in interpreting a statute of this description to extend the fair meaning of the language of the statute, so as to include in it a removal of such incapacity of a married woman to contract, so universally recognized by the common law, when such purpose is not expressed in the statute, unless the implication of the removal of such incapacity is obviously necessary to carry out the clearly expressed objects of the statute. This we understand is the spirit, which pervades the West Virginia decisions above referred to.

It remains then to consider, whether the expressed objects of section 13 of chapter 66 of our Code would be practically defeated, unless we construed this section as impliedly removing the incapacity of a married woman living separate and apart from her husband to make contracts, which would be recognized by the common law courts as valid against her. This section expressly authorizes her in her own name, when living separate and apart from her husband, to carry on any trade or business. Can she practically do this, unless the common law courts recognize her contracts made in carrying on such trade or business as...