Wisdom v. Newberry

• Decision Date: 05 April 1888
• Citation: 30 Mo.App. 241
• Parties: J. W. WISDOM, Respondent, v. M. A. NEWBERRY et al., Appellants.
• Court: Kansas Court of Appeals

30 Mo.App. 241

J. W. WISDOM, Respondent, v. M. A. NEWBERRY et al., Appellants.

Court of Appeals of Missouri, Kansas City.

April 5, 1888

APPEAL from Audrain Circuit Court, HON. E. M. HUGHES, Judge.

Reversed and remanded, with directions.

The case is stated in the opinion.

FRY & MOSBY, for the appellants.

I. The judgment as to the wife is a personal judgment against a married woman and is, therefore, void. Corrigan v Bell, 73 Mo. 53; Higgins v. Peltzer, 49 Mo 156. The case of Merrill v. St. Louis, 83 Mo. 244 does not change the rule. That was an action for the wife's tort, for which she has always been held personally liable. This is an action on her contract for damages. In Johnson v. Gantry, 83 Mo. 339, and Keating v. Korfhage, 88 Mo. 524, decided after the Merrill case, the court held a personal judgment against a married woman void. The pasture contracted for was not her separate estate, but belonged to the Palmer estate and she had it leased for 1886. Defendant's objection to the introduction of evidence should have been sustained on his demurrer to the evidence.

II. The judgment as to her husband is void. He was not a party to the contract and was not liable for the ante-nuptial debts of his wife. Laws of Mo. 1881, p 161; Bobb v. Bruere, 23 Mo.App. 604.

III. The court erred in admitting the evidence of plaintiff as to what he expended for the corn damaged by plaintiff's cattle; and repair of the fence. Such damages are too remote, not such as naturally resulted from the breach of the contract. Turner v. Gibbs, 50 Mo. 557; Clemens v. Railroad, 53 Mo. 366. Such damages were " not within the contemplation of the parties" when the contract was made. McAlister v. Railroad, 74 Mo. 361. With the fence repaired it was not contemplated that the cattle would not get out. It is not claimed that defendant contracted to build a fence that would keep the cattle in, that she insured the fence. In fact, plaintiff from the beginning employed a man to " watch after the cattle and keep them in the pasture."

IV. The court erred in refusing defendant's instruction. The only damages defendant could be liable for was damages to the cattle themselves, if defendant failed to keep her contract. Waters v. Brown, 44 Mo. 302.

V. The court's first instruction is erroneous in that it is not based upon the evidence. There was no evidence and it was not claimed that defendant contracted to " keep up" the fences. She contracted to repair and after so repaired plaintiff accepted it. Defendant was not required to repair only as she expressly contracted to. Peterson v. Smart, 70 Mo. 34; Fenton v. Montgomery, 19 Mo.App. 156. If defendant was required to repair the west fence plaintiff is not entitled to recover the damages claimed because by slight exertion he might have avoided the damage. Waters v. Brown, 44 Mo. 302; Bridge Co. v. Schaubacher, 57 Mo. 587; State ex rel. v. Powell, 44 Mo. 436. Therefore, the court's first and second instructions did not correctly declare the law.

VI. The evidence is clear that defendant contracted to do certain repairs before plaintiff was to take possession. Defendant repaired the fences on April 15 and 16, and if not exactly as contracted, plaintiff should have then made his objections; but he did not; he accepted the repairs as made and took possession of the pasture on April 28, and employed an agister to keep the cattle in the pasture. There was no complaint as to the fence until the cattle got out in June. We insist that plaintiff, after accepting the repairs made and appropriating the fence as repaired to his use, is not entitled to damages.

W. H. KENNAN, for the respondent.

I. Plaintiff testified: " I made demand of defendant to fix fence on west side of pasture, and each time she promised to repair it on west side of pasture, and in the presence of Lafayette Saxton, and two other times after that. If defendant had not so often promised me she would repair west string of pasture fence, I should have done so sooner than I did." Robert Palmer testified: " I fixed the east and south of pasture fence and also repaired some on west side of pasture. I did this the next morning after the contract was made, under the instruction of my mother, the defendant."

II. The defendant, M. A. Newberry, was a single woman when she made the contract sued on, and a judgment against her and her husband acquired after the contract was made is proper. Walker v. Deaver, 79 Mo. 681.

III. The judgment as to E. F. Newberry is not void. This court has the power to modify the judgment as to E. F. Newberry, so as to allow the plaintiff to have execution against such property the defendant may have acquired from his wife, M. A. Newberry, co-defendant. Bobb v. Bruere, 23 Mo.App. 612; Walker v. Deaver, 79 Mo. 681.

IV. The damage allowed by the court, as is shown by the evidence, is a result of the breach of the contract, and is proper. Turner v. Gibbs, 50 Mo. 556.

V. The judgment of the lower court should be sustained.

HALL J.

This action was begun before a justice of the peace against the female defendant, then an unmarried woman, under the name of " Mrs. M. A. Palmer." The plaintiff had judgment and the defendant appealed to the circuit court. Thereafter Mrs. Palmer married E. N. Newberry, and that fact being suggested by the plaintiff by motion asking that the husband be made a party defendant, it was so ordered, and he thereupon entered his appearance. Afterwards the case was proceeded with to trial resulting in a judgment for plaintiff against defendants in the sum of eleven dollars, from which the defendants have appealed to this court. This suit was upon an ante-nuptial contract made by the female defendant. At common law such actions were brought against the husband and wife jointly. Bright on Husband and Wife, 79, and cases cited. This is still the rule in this state. Walker v. Deane, 79 Mo. 681. And that the wife should be made a party defendant would seem to be contemplated by section 3296, Revised Statutes, which provides that her separate personal property " shall be subject to execution for the payment of the debts of the wife contracted before marriage." The point made that the judgment against the female defendant is void, because it is against a married...