Taylor v. Leonard

• Decision Date: 14 May 1925
• Docket Number: (No. 3021.)
• Citation: 275 S.W. 134
• Parties: TAYLOR et al. v. LEONARD.
• Court: Texas Court of Appeals

275 S.W. 134

TAYLOR et al. v. LEONARD.

(No. 3021.)

Court of Civil Appeals of Texas. Texarkana.

May 14, 1925.

Rehearing Denied June 11, 1925.

Appeal from District Court, Lamar County; Newman Phillips, Judge.

Action by D. A. Leonard against Veryl Georgette Taylor and another. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Wright & Baldwin, of Paris, for appellants.

W. F. Moore, of Paris, for appellee.

HODGES, J.

This suit was instituted by the appellee, Leonard, against the appellants to recover damages for the breach of a contract. According to the facts, about which there is no apparent disagreement, the appellants are husband and wife, and at the time this suit was filed resided in Texas. In February, 1920, Mrs. Taylor owned in her separate right a tract of land situated in the state of California. On the 3d day of the month above mentioned, while she and her husband were temporarily residing in that state, Mrs. Taylor entered into the following written contract:

"This agreement, made this 3d day of February in the year nineteen hundred and twenty between Veryl Georgette Taylor of Calexico, county of Imperial, state of California, hereinafter designated as the seller, and J. L. Manahan of Calexico, county of Imperial, and state of California, hereinafter designated as the buyer, witnesseth:

"That the said seller, in consideration of the covenants and agreements hereinafter contained and made by and on the part of said buyer, agrees to sell and convey unto the said buyer, and said buyer agrees to buy all that certain lot, piece, or parcel of land situated, lying, and being in the city of Calexico, county of Imperial, state of California, and bounded and particularly described as follows, to wit, all of lot seventy-six (76) of Melrose Park as per map of said plat now on record in Book two (2) at page seventy-seven (77) of Maps Records of Imperial county, for the sum of one thousand and no/100 dollars, in gold coin of the United States, and the buyer, in consideration of the premises, agrees to buy, and to pay to the seller the said sum of one thousand and no/100 dollars, as follows, to wit, two hundred fifty and no/100 dollars upon the execution and delivery of this agreement, receipt of which is hereby acknowledged, and the further sum of two hundred fifty and no/100 dollars on the 3d day of May, 1920, and two hundred fifty and no/100 dollars on August 3d, 1920, and two hundred fifty dollars on November 3d, 1920, with interest at the rate of 7 per cent. per annum, payable quarterly from date. Taxes for the current year 1919-20 to be paid by 1st inst. by seller and 2d inst. by buyer, who agrees to pay all assessments levied subsequent to the date hereon; all payments on this contract to be made at the First National Bank.

"It is understood and agreed that time is the essence of this contract, and, should the buyer fail to comply with the terms hereof, then the seller shall be released from all obligations in law and equity to convey said property, and the buyer shall forfeit all right thereto and to all moneys theretofore paid under this contract; but the seller, on receiving the full payments at the time and in the manner above mentioned, agrees to deliver a certificate of title showing the title to be vested in himself, and seller agrees that all payments on street work are to be paid to date, and to execute and deliver to the buyer or his assigns a good and sufficient deed of grant, bargain, and sale.

"In witness whereof the parties hereto have affixed their hands and seals the day and year first above written.

                "[Signed] Veryl Georgette Taylor.  [Seal.]
                          "J. L. Manahan.          [Seal.]
                

"Signed, sealed, and delivered in the presence of ____."

While apparently willing for his wife to make this contract, the husband did not join in its execution. Manahan, a party to the contract, later assigned his interest to Leonard, the appellee in this appeal. All of the payments except the last were made. Upon the failure of Leonard to pay that at maturity, Mrs. Taylor exercised her option to declare the contract forfeited and conveyed the land to another party. Leonard's demand for a return of the money which he had previously paid was refused. He then filed this suit to recover as damages the amount he had previously paid on the purchase price of the land, and $250 additional. The trial below resulted in a personal judgment against Mrs. Taylor for the sum of $750.

Several questions are presented in this appeal, but under the view we take of the case only one need be discussed — the correctness of the holding that Mrs. Taylor was personally liable on her contract. The proof shows that the contract was made in California, and was to be performed, in part at least, in that state. If this suit had been brought there her coverture would not have been a defense to an action for a personal judgment.

As a general rule the laws of the place where the contract is made, when different from those of the forum, control, not only in the construction of the contract, but in determining the nature and extent of the legal obligations embraced in the contract. While the courts of one state are not under the dominion of the laws of another state, there is an unwritten rule of comity generally observed in giving effect to the lex loci contractus when different from the lex fori. That is done because it is generally the fairest way of arriving at and giving effect to the intention of the parties to the contract. That rule has, however, its exceptions. It will not be observed and applied when to enforce a foreign contract, according to the provisions of the foreign laws, will contravene some established rule of public policy of the state of the forum. Union Trust Co. v. Grosman, 245 U. S. 412, 38 S. Ct. 147, 62 L. Ed. 368; 1 Wharton on Conflict of Laws (3d Ed.) 275.

We come, then, to the controlling inquiry — Would the enforcement of this California contract according to the laws of that state contravene any established rule of public policy in this state? The public policy of this state is to be found in the unwritten or common-law restrictions, as well as in its statutory limitations. The common law, except where altered by statute, is just as much a part of our local jurisprudence as are the enactments of the Legislature. It is, of course, conceded that under the common law, as recognized in this state, Mrs. Taylor could not be held personally liable upon her contracts. The only statutory modification of that limitation upon her powers is found in article 4624, Revised Civil Statutes (Vernon's Sayles' Ann. Civ. St. 1914), which is as follows:

"Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payments of debts contracted by the wife, except those contracted for necessaries furnished her or her children."

Article 4629a provides that a married woman may, with the consent of her husband, apply to a district court of the county in which she resides for an order removing her disabilities of coverture, and thus acquire the rights of a feme sole for mercantile and trading purposes. Mrs. Taylor had not sought emancipation from the disabilities of coverture, and article 4624, quoted above, removes the common-law limitation only as to contracts for necessaries for herself and children. Red River Nat. Bank v. Ferguson, 109 Tex. 287, 206 S. W. 923.

What are commonly called the disabilities of coverture are not, in fact, civil disqualifications inherent in the female sex, nor are they a necessary or natural sequence to the assumption of the marriage relation. In the absence of some positive law to the contrary, the right of contract is a necessary incident to the right to own and hold...