Speier v. Opfer

• Decision Date: 28 November 1888
• Citation: Speier v. Opfer, 73 Mich. 35, 40 N.W. 909 (Mich. 1888)
• Court: Michigan Supreme Court
• Parties: SPEIER ET AL v. OPFER ET UX.

40 N.W. 909

73 Mich. 35

SPEIER ET AL v. OPFER ET UX.

Supreme Court of Michigan

November 28, 1888

Error to circuit court, Wayne county; JOHN J. SPEED, Judge.

Action by Frederick Speier and Henry Buck against John Opfer and Augusta Opfer, his wife, on a contract for improvements on land. Judgment for plaintiffs, and defendants bring error.

LONG J.

This action was brought in the circuit court for the county of Wayne to recover for work and labor and material furnished by plaintiffs in the erection of a building on premises owned jointly by defendants, who are husband and wife. Plaintiffs had verdict and judgment in the court below for $297.67. Defendants bring error. On the trial plaintiffs gave evidence tending to show that between the 22d day of October and the 7th day of December, 1883, they made a contract with the defendants jointly for furnishing the material and doing the work in building, and repairing a dwelling-house and saloon upon premises owned jointly by the defendants in the city of Detroit; that the contract price was $308, and the extra work done, $12.50. At the time the contract was first talked over the defendants were together, and agreed to let the plaintiffs know the next day whether they should go on with the job. The next day Mrs. Opfer called upon the plaintiffs and said they should go forward with the work. When the work was about half completed, plaintiffs called upon Mrs. Opfer for money, when she told them she had it in the bank, and the next day would pay them $100. No part has ever been paid. The claim on the part of defendants is that the work was not done in accordance with the terms of the contract, but was so bad as to be practically worthless. Evidence was then given by plaintiff that the work was done in accordance with the contract. The defendant John Opfer also testified that the contract was made with himself alone, and that his wife was not a party to it. It was shown on the trial, and not disputed, that the defendants were husband and wife, and that the premises on which the work was done had been deeded to them jointly, as husband and wife, about three months before the making of the contract, and that they occupied the premises at the time of the making of the contract, and had continued to occupy them ever since. But while the repairs were going on the defendants did not occupy exclusive the portion of the building undergoing repairs. The building was a saloon and dwelling-house together. At the close of the testimony the counsel for defendants requested the court to instruct the jury (1) that in this case no verdict can be rendered against Mrs. Opfer; (2) that, under the pleadings and evidence, the plaintiffs cannot recover. These instructions the court refused to give, but submitted the questions to the jury upon the claims made by the respective parties under the contract, directing the jury that, if the contract was made with the two defendants, and the work was done in substantial compliance with the contract, their verdict must be for the plaintiffs; if not so done, then the jury should allow what the work was reasonably worth. If, however, the contract was made with John Opfer alone, and not with the two jointly, then the plaintiffs could not recover. Error is assigned upon the refusal of the court to give defendants' requests in charge to the jury and upon the charge of the court directing the jury that if they found the work was not in substantial compliance with the contract, yet, if they found there had been an acceptance of the work,-that is, if the defendants had the benefit of it, availed themselves of it,-then the plaintiff should recover what the reasonable value of the work was, irrespective of the contract. Under this charge the jury found that the contract was a joint one between the husband and wife, but made some deductions by reason of the work not having been done in accordance with the contract, and undoubtedly undertook to allow what the work was worth.

The real point in controversy here is, however, whether the wife can be held liable upon a joint contract with her husband for improvements made upon real property owned by them jointly. By the rules of the common law a married woman has no power to bind herself by contract, or to acquire to herself, and for her exclusive benefit, any right by a contract made with her. A married woman could not be sued upon a mere personal contract...