Keen v. Hartman

The opinion of the court was delivered, by Strong, J. — This was an action of trespass upon the case, in which the declaration averred that Mary Ann Hartman, one of the defendants, had falsely, deceitfully, and fraudulently represented to the plaintiff that she was a widow, named Mary Ann Coleman, and that she was not a married woman, when in truth she was not a widow, but had been secretly married four days previously to the other defendant. The declaration further averred that by reason of this false and deceitful statement, the said Mary Ann had obtained from the plaintiff promissory notes made by one (jreorge Moore, which were the property of the plaintiff, and of great value, and that the plaintiff delivered to her those promissory notes in exchange for a bond and mortgage executed and delivered by her as a widow and unmarried woman. At the trial a verdict was returned for the plaintiff, but the court arrested judgment, being of opinion that such an action could not be sustained. Herein it is insisted there was error. It is no doubt a general principle that for the fraud or other tort of a married woman an action may be maintained against her and her husband. At the same time it is a principle equally general that a wife' is incapable of making a contract that can be enforced in any manner against her. Her disability, though like that of an infant, is even more complete. These principles must both be maintained in the full extent of their meaning. What, then, is their meaning as related to each other ? Many torts are founded upon duties growing out of contracts. The practical effect of maintaining an action for such torts is the same as would be that of maintaining actions in form ex contractu, brought for the breach of the contracts themselves. But the disability and consequent immunity of a feme covert are substantial and not formal. So is it with ^n infant. Hence it has always been held that the contract of neither can be enforced substantially by any form of action, for if it could the legal immunity would cease to be a personal protection, and would exist or not, according to the remedy which a plaintiff might choose to adopt. Necessarily, therefore, the principle first stated is to be understood as applicable only to actions brought for wrongs done by the wife, which are what are sometimes denominated “ torts simpliciter,” in other words, torts, the substantive basis of which is not the wife’s contract. It is essential to the maintenance of any action for a tort that there be not only a wrongful act done by the defendant, but an injury to the ■ plaintiff. If the injury to the plaintiff consist in his inability to realize what a feme covert gave him reason to expect from her undertaking, it is not a case of pure and simple tort. The real injury then flows [500] from her non-compliance with her engagement, and an action to recover compensation for it, if maintainable, gives equal effect to her contract, no matter in what form the action may be brought, whether in form ex contraetu or ex delicto. It practically enforces it. It is not strange, therefore, that it was early ruled that an infant is not liable for a false representation by which he induces a party to contract with him. This was decided in Johnson v. Pye, 1 Sid. 258. The case is also reported in 1 Levinz 169, and in 1 Ke. 913. And there can be no distinction in this respect between the case of an infant and that of a married woman. None is recognised. In Cooper v. Witham, 1 Lev. 247, 1 Sid. 375, and 2 Ke. 399, we find an action brought against a husband and wife, for that she being covert, affirmed herself to be sole, and requested the plaintiff to marry her, averring it to have been done maliciously, and with intent to deceive the plaintiff, whereupon he married her, whereby he was disturbed 'in conscience, and put to great charge by the husband. It was held, on motion in arrest of judgment, that the action would not lie, and the ground of the decision was, that the matter upon which the action was based “sounded in contract.” Precisely the same doctrine was maintained in the modern case of The Adelphi Loan Association v. Fairhurst, 9 Exch. 422, a case not distinguishable from the present. There, it was ruled an action will not lie against a husband and wife for a false and fraudulent representation by the wife to the plaintiff, that she was sole and unmarried at the time of her signing a promissory note as surety to him for a third person, whereby the plaintiff was induced to advance a sum of money to that person. The case was fully argued and decided after consideration, and review of the authorities. Pollock, C. B., in delivering the judgment of the court, while admitting the general liability of the husband and wife for her torts, said, “ but when the fraud is directly connected with the contract of .the wife, and is the means of effecting it, and parcel of the same transaction, the wife cannot be responsible, and the husband - be sued for it together with the wife. If this were allowed it is obvious the wife would lose the protection which the law gives her against contracts made by her during coverture, for there is not a contract of any kind which a feme covert could make whilst she knew her husband to be alive, that could not be treated as a fraud. Eor every such contract would involve in itself a representation of her capacity.” In this state no case has arisen until the present, in which this precise question has been determined, but the principle that governs the English cases has been asserted and applied in actions for torts brought against infants. It was maintained, with much force of argument, by C. J. Gibson, in Wilt v. Welsh, 6 Watts 9, and many authorities were cited. It finds some support also in Pen501 rose v. Curren, 3 Rawle 351. We have other cases to the point that though an action may be in form as for a tort, yet if the subject of it he based upon a contract there can be no recovery, when an action on the contract directly would fail, and this whether the defendant be an infant or an adult. In view of these authorities and of the reasons by which they are sustained, we are brought to the conclusion that the present plaintiff’s action cannot be sustained, that no cause of action was set forth in the declaration, and that it was right to arrest the judgment upon the verdict. It may seem hard that a person injured by the fraud of a married woman, consummated through the agency of her contract, should be without civil remedy, but it is necessary to the conservation of that protection which the law throws over her during her coverture, against being bound by her contracts, and the rule entails no more loss upon him than does his inability to enforce her contract directly. Judgment -affirmed.