Perkins v. Blethen

• Court: Maine Supreme Court
• Writing for the Court: PEABODY, J.
• Citation: Perkins v. Blethen, 107 Me. 443, 78 A. 574 (Me. 1911)
• Decision Date: 06 January 1911
• Parties: PERKINS v. BLETHEN.

78 A. 574

107 Me. 443

PERKINS

v. BLETHEN.

Supreme Judicial Court of Maine.

Jan. 6, 1911.

Report from Supreme Judicial Court, Somerset County, at Law.

Action by J. C. Perkins against Fred W. Blethen. On report Judgment for defendant.

Assumpsit on an account annexed, brought by the plaintiff as assignee of Abbie M. Blethen, the wife of the defendant. Plea, the general issue with brief statement as follows: "That at the time of the alleged promises contained in plaintiff's declaration the defendant and the assignor of the claim in suit were and now are husband and wife." The writ was returnable at the March term, 1909, of the Supreme Judicial Court, Somerset county, and the defendant's pleadings were not filed until the following December term of said court. Counsel for the plaintiff moved to have the brief statement stricken out as the matter contained therein should have been pleaded either in abatement or within the time for such pleas. At the close of the testimony, a pro forma nonsuit was entered, and it was then agreed between the parties that the case be reported to the law court for its determination upon the writ, declaration, and pleadings and such of the evidence as was legally admissible under the pleadings; all rights of and under the pleadings being reserved to the plaintiff. It was further agreed that if the action was maintainable on the pleadings, and such of the evidence as is legally admissible thereunder, judgment was to be entered for the plaintiff in the sum of $700.

The case is stated in the opinion.

Argued before EMERY, C. J., and SAVAGE, PEABODY, SPEAR, CORNISH, and KING, JJ.

Merrill & Merrill, for plaintiff.

Henry E. Coolidge and Newell & Skelton, for defendant.

PEABODY, J. This is an action of assumpsit brought by the plaintiff as assignee of Abbie M. Blethen of a chose in action. The pleadings were the general issue with brief statement "that at the time of the alleged promises contained in the plaintiff's declaration the defendant and the assignor of the claim in suit were and now are husband and wife." Counsel for plaintiff moved to have the brief statement stricken out on the ground that it should have been pleaded within the time for pleas in abatement. The case is reported to the law court, all rights of and under the pleadings being reserved to the plaintiff, and it being agreed that, in case judgment is entered for the plaintiff, it shall be for the sum of $700.

The evidence is undisputed that Abbie M. Blethen, wife of the defendant, loaned her husband during coverture several sums of money from her own personal funds. The several amounts during the six years prior to the bringing of this action amounted to $700. These several sums were put into the house and land which the husband held in his own name. No notes and no security were given for these loans. Subsequently she ceased to live with her husband. Upon ascertaining that she could not sue him to recover the amount of these loans, she assigned her claim to the plaintiff, receiving a valuable consideration for the same.

The defendant offered no testimony to contradict these facts, but he relies solely upon the contention that in the state of Maine a husband or wife cannot sue the other in an action at law on a contract either express or implied, and that an assignee of a chose in action takes the same subject to all equities existing between the original parties.

Rev. St. c. 63, § 1, gives to a married woman certain powers over her separate estate which cannot be reconciled with the common-law status of husband and wife. By a well-established line of cases in this state it is held that this statute gives a married woman the power to contract with her husband as well as with strangers in reference to her separate estate. Webster v. Webster, 58 Me. 139, 4 Am. Rep. 253; Blake v. Blake, 64 Me. 177; Wyman v. Whitehouse, 80 Me. 257, 14 Atl. 68. On the other hand, it is as clearly held that the common-law doctrine of the marriage relation is still in full effect except as modified by statute, and this is inconsistent with the maintenance of actions at law between husband and wife. In Crowther v. Crowther, 55 Me. 358, it was held that a wife could not maintain an action of assumpsit against her husband even under a statute (Rev. St. 1857, c. 61, § 3) by which she is authorized to "prosecute and defend suits at law or in equity for the preservation and protection of her property, as if unmarried, or may do it jointly with her husband." The language of this statute was somewhat amplified by Act 1876, c. 112, but, again, it was held in Hobbs v. Hobbs, 70 Me. 381, that an action of assumpsit could not be maintained; it being distinctly stated in this opinion as follows: "That the wife cannot maintain an action at common law against her husband during the existence of the marriage relation has always been held to be the law in this state." In Copp v. Copp, 103 Me. 51, 68 Atl. 458, where the action was brought in the name of the wife for the benefit of an assignee, the present statutes being then in force, it was admitted and held that no judgment could be...