Semple v. Kramer Et Ux.

Opinion by Linn, J., Appellants, husband and wife, appeal from judgment against them in assumpsit for an unpaid balance of a boarding-school obligation which the jury found was incurred by them for the education of their minor daughter. Though a number of disputed questions were *163 settled on the merits at the trial, appellants present two for our consideration, stated in the brief as follows: “(1) Whether a joint action can be maintained against husband and wife upon a contract signed in New York City in the State of New York by the wife in •her own name,......” “(2) The place of performance and the place where the contract was made was in New York State. No evidence was offered as to what the law of New York State is relating to the disability of a married woman during coverture to contract. Does the common law apply?” If these points were not raised below, as appellee contends, we need, of course, not now consider them, (Hanley v. Waxman, 80 Pa. Superior Ct. 274, 276; Maisel v. Corr, 277 Pa. 331, 333) but they are easily disposed of. The first question must be answered in the affirmative. The statement of claim, which was read into the evidence, averred that the wife signed the application on which the child was accepted by the school, on behalf of herself and her husband, and that payments on account were made on behalf of both and were credited to both. As those allegations of fact were not denied within the meaning of the Practice Act in the affidavit of defense, they stood admitted; no evidence was offered to prove the contrary; notwithstanding that, the court submitted the matter to the jury who found for the plaintiff; a contrary finding could not have been sustained. The second question has been definitely settled against appellants for reasons adequately stated in decisions to which we can add nothing: Bayuk Bros., Inc., v. Wilson Martin Co., 81 Pa. Superior Ct. 195, 197; Bennett v. Caldwell, 70 Pa. 253, 258; Van Auken v. Dunning, 81 Pa. 464, 467. Judgment affirmed.