Whipple v. Giles
| Decision Date | 11 March 1875 |
| Citation | 55 N.H. 139 |
| Parties | Whipple v. Giles. |
| Court | New Hampshire Supreme Court |
Contracts of Married Women.
The contract of a married woman to pay for services of an attorney in prosecuting a libel for divorce against her husband is not binding.
A married woman cannot bind herself by a mere personal contract so that an action can be maintained against her after the coverture has ceased, nor will such contract be implied against her by reason of services rendered during her coverture
The plaintiff was employed by the defendant, as an attorney-at law, to procure for her a divorce on the alleged ground of extreme cruelty, and it is for services so rendered that suit is now brought. After the testimony had been taken, the proceedings for divorce were abandoned by her, and she directed the plaintiff to proceed no further, and the defendant thereafter lived with her husband as his wife until his death some year or two after. Since the death of the husband this suit was brought. If the plaintiff can maintain his action, he is to have judgment for the amount of his claim and taxable costs, otherwise a nonsuit is to be entered.
It is settled that the common-law disability of a married woman to bind herself by contract is not removed by statute in this state, except so far as regards her contracts respecting property which she holds in her own right. That was so decided in Bailey v. Pearson, 29 N.H. 77, upon the statute of 1846, which was not materially different from Gen. Stats., ch. 164, sec. 13, and has been repeatedly reaffirmed since. This seems to me quite decisive of the present case. There is no just sense in which a contract by a married woman for the services of an attorney in procuring for her a divorce can be said to be a contract respecting her separate property, even if she had such property, which does not here appear. I think the action cannot be maintained. CUSHING, C. J
husband be joined in the suit or not, unless such contract was made in respect to property held by the wife to her sole and separate use." Carleton v. Haywood, 49 N.H. 314.
"Where a feme-covert, holding property under the act of 1846, signed a promissory note during the coverture, which did not appear to have been given on account of any contract growing out of the property---held, that it could not be recovered." Bailey v. Pearson, 29 N.H. 77. Substantially the same doctrine is held in Eaton v. George, 40 N.H. 258;---see, also, Brown v. Glines, 42 N.H. 160; Eaton v. George, 42 N.H. 375; Ames v. Foster, 42 N.H. 381; Shannon v. Canney, 44 N.H. 592; Leach v. Noyes, 45 N.H. 364.
It appears from the cases cited, that, independently of statutory exceptions, it is generally true that a married woman cannot be bound by any contract expressly made by her during her coverture, or implied against her by reason of matters arising during the same time. I see nothing in the facts stated in this agreed case to take...
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Tyler v. Winder
...Cook v. Walton, 38 Ind. 228; Wilson v. Burr, 25 Wend. (N.Y.) 386; McCabe v. Britton, 79 Ind. 224; Drais v. Hogan, 50 Cal. 121; Whipple v. Giles, 55 N.H. 139, cited defendant. Some of the authorities so holding are quite ancient and seem to be under the influence of the old common law rule. ......
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Musick v. Dodson
...that a married woman's promise to pay an attorney his fee for obtaining a divorce for her, would not be binding upon her. Whipple v. Giles, 55 N. H. 139; s. c., 2 Cent. L. Jour. 484. This being the case, the engagement made with the plaintiff by Mrs. Dodson, now wife of defendant, then wife......
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Carey & Co. v. Burruss
... ... Bauer, ... 40 Mo. 61; Pond v. Carpenter et al., 12 Min. 430; ... Pollen v. James, 45 Miss. 129; Whipple v ... Giles, 55 N.H. 139; Ames v. Foster, 42 N.H ... 381; Johnson v. Cummins, 16 N.J.Eq. R. 97; ... Kavanaugh v. Brown, 1 Texas 481 ... ...
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Wolcott v. Patterson
...that the wife is not competent to charge herself with such expenses (Musick v. Dodson, 76 Mo. 624; Cook v. Walton, 38 Ind. 228; Whipple v. Giles, 55 N.H. 139). See, dissenting opinion of Pettit, C.J., in Putnam v. Tennyson, 50 Ind. 461. We think the cases which deny the husband's liability ......