Tillman v. Shackleton

• Decision Date: 21 May 1867
• Citation: 15 Mich. 447
• Court: Michigan Supreme Court
• Parties: James W. Tillman and others v. Emily Shackleton

15 Mich. 447

James W. Tillman and others v. Emily Shackleton

Supreme Court of Michigan

May 21, 1867

Heard May 16, 1867. [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action of assumpsit brought against defendant in error--a married woman who was engaged in keeping a boarding-house--for certain furniture purchased by her, for said business.

Judgment was rendered for plaintiff.

The facts are stated in the opinion.

Judgment of the Circuit Court reversed and justice affirmed, with costs.

C. J. O'Flynn and G. V. N. Lothrop, for plaintiff in error:

1. The defendant purchased the property in her own name, for herself, and not for her husband, or as his agent. Section 1 of the act of 1855 (Comp. L., § 3292) allows her to acquire property, both real and personal, "by gift, grant, inheritance, devise, or in any other manner." The term grant is comprehensive enough to embrace a purchase of personal property: 44 Barb. 374; 27 N. Y., 277; 33 Id. 518.

If it is not, the clause in any other manner certainly is.

a. The furniture can in no sense be considered as a part of the earnings of the boarding-house. Had it been paid for by money received from the boarders, the case might be different. The only question, then, before the court is, whether a married woman can become the owner of personal property by purchasing the same in her own name or credit.

b. It is to be presumed, from the evidence in the case, that defendant carried on the boarding-house with the consent of her husband. Is there anything to prevent a husband from giving his wife her time and earnings? He can give her anything of value which he owns, and no one has a right to object but a creditor. There is no objecting creditor in this case.

2. If the furniture became the sole property of defendant, then an action is maintainable against her for the purchase money: Comp. L., § 3294.

An action for the purchase price of a thing is certainly an action in relation to it.

Even if the furniture did not become the sole property of defendant, nevertheless she is liable personally for the contract price.

Under section 4 of the act of 1855, as amended by the act of 1857 (Comp. L., § 3295), a married woman is liable to be sued upon any contract made by her, in cases where her husband is not in law liable. The husband is certainly not liable in this case. The furniture was not sold to, or purchased by defendant, as the wife, or as the agent of her husband, but was purchased by, and sold to her, individually, and upon her sole credit: 3 Campb. 22; 5 Taunt. 356; 2 Hill S. Car., 335; 1 Car. and P., 16; Story on Agency, § 447.

Under the original act of 1855, the wife was, undoubtedly, only liable to be sued upon contracts in relation to her sole property. The amendment of 1857, however, has clearly made her liable in all cases where her husband is not liable. We submit that the court did not intend to decide this point formally in Glover v. Alcott.

J. Caplis and F. H. Canfield, for defendant in error:

The only question presented to this court is, whether the contract sued upon is a valid one, and upon which the defendant in error is personally liable.

We insist that it is not. At common law, there is no doubt that such a contract by a feme covert would be wholly void.

The statute of this state has, to a certain extent, modified the common law: 2 Comp. L., pp. 966, 967.

But it has not invested the feme covert with an unlimited power of contracting in her own name, or to the extent claimed by plaintiff in error in the present action.

By section 1 of this act, it is provided that all the property of every married woman, howsoever or whensover acquired, shall be and remain her own estate; that the same shall not be liable for her husband's debits, and that it may be contracted, incumbered and conveyed by her in the same manner, and with like effect, as if she were unmarried.

Section 3 provides for the bringing of suits by and against married women in relation to their own separate property, "and also in cases where the property of the husband can not be sold, mortgaged or otherwise incumbered, without the consent of the wife, to be given in the manner prescribed by law, or when his property is exempted by law from sale on execution or other final process issued from any court against him, his wife may bring an action in her own name, with the like effect as in cases of actions in relation to her sole property, as aforesaid."

Section 4 exempts the husband from liability upon any contracts made by the wife in relation to her sole property.

This action can not be maintained under any of the sections alluded to, which relate simply to the separate property of femes covert, for the following reasons:

First. The power of a married woman to bind herself by contract exists only where she has, at the time of making the same, separate property in her own right.

Second. There is no proof that the defendant in error had any property at the time the contract was made, in relation to which she could contract. The contract was therefore void ab initio, and cannot be enforced. Nothing has since transpired to give it validity.

Third. The property purchased under the alleged contract sued upon, became the property of the husband. He, therefore, is alone liable for its payment: 17 Iowa 393; 42 N.H. 381; 36 Penn. 410; 38 Id. 279; 21 Id. 349; 3 E. D. Smith, 310; 5 Wis. 253; 5 Duer 477; 3 Law Register, 229; 21 Barb. 546, 551; 38 Id. 27; 4 Duer 96; 35 Me. 332; 11 Mich. 470; 18 N. Y., 272.

The presumption of the law on the facts of this case is, that the defendant acted merely as the agent of her husband. The property was brought to his house, was received by him, and he has enjoyed the use of it. He must have known of the purchase at the time it was made, and will be presumed to have assented to and ratified it. The following authorities support fully the proposition: Chitty on Cont., 166, 161; Story on Agency, §§ 160, 161, 270, note 3; Parsons on Cont., 288; 6 N. H., 124; 15 Conn. 357.

This suit can not, therefore, be maintained, by virtue of section 3 of the acts upon which the plaintiffs in error rely.

This action can not be maintained by virtue of the provisions of section 4. This section, it is contended, provides for three cases in which suits may be maintained against a married woman.

First. Upon contracts made by her in relation to her sole property.

Second. Upon contracts where her husband is not in law liable.

Third. Where he refuses to perform such contracts.

The most liberal construction of this section will not warrant the conclusion that the defendant in error is liable upon the contract sued upon. We have already shown that it is not a contract in relation to her sole property. And in the absence of proof that the contract was in relation to her sole property, the law will presume that she acted simply as the agent of her husband. He is liable upon the contract, and there is no proof that he ever refused to perform it.

This court can not maintain this action without violating the well established rule of construction, that statutes in derogation of the common law must be strictly construed: 2 Mich. 486; 3 Id. 309; 4 Id. 332; 21 Barb. 558.

The object of the statute was the protection of married women in the enjoyment of their own property, and the protection of creditors upon contracts made with them in relation to such property. It was not intended to repeal all the restrictions imposed by the common law upon the power of femes covert to do business on their own account. But such will be its effect if the construction contended for by the plaintiffs be correct. If the defendant in error was capable of making the contract in this cause, then there is no contract, not in itself void, which a married woman can not legally make, and no commercial enterprise in which she may not engage.

We submit that the judgment of the circuit court should be affirmed.

Christiancy, J. Cooley, J. Campbell, J. concurred. Martin, Ch. J. dissented.

OPINION

Christiancy J.:

This suit was originally brought by the plaintiffs in error against the defendant in error in a justice's court, to recover the price of certain furniture sold to defendant. The justice rendered judgment for the plaintiffs for two hundred and twenty dollars and costs.

The defendant removed the cause to the circuit court by certiorari, where the judgment of the justice was reversed, and the original plaintiffs have brought the cause to this court by writ of error to reverse the judgment of the circuit court.

It appears by the return of the justice to the certiorari, that on the trial of the cause before him, it was admitted by the parties that the plaintiffs in that suit "sold, and the defendant purchased in her own name, certain furniture of the value of two hundred and twenty dollars; that at the time of said sale and purchase the defendant was a married woman, living with her husband, in a house in Detroit, which was kept as a boarding-house; that she had the sole control and management of the house, and received the pay of the boarders; that the furniture, to recover the value of which this suit was brought, was purchased by her for said boarding-house, and that it was used for such purpose, and that her said husband had nothing to do with the management of said boarding-house, and received none of the profits arising therefrom."

If this evidence fairly tends to show a state of facts which would warrant the judgment rendered by the justice, then it could not properly be reversed on certiorari, though the circuit court or this court were of a different opinion upon the weight of the evidence.

We think the evidence clearly...