Lippincott & Wife v. Hopkins

The opinion of the court was delivered by A&new, J. There is no inconsistency between the counts of the declaration. The averment that Mrs. Lippincott was authorized to become indebted to the plaintiff for the work and material [331] furnished by him is not -inconsistent with the express averment that she herself requested ■ the work to be done, and became indebted for it on account of its being necessary for her separate estate. It is simply an averment ex majore cautela to show the husband’s express assent to the act of his wife, but the act is clearly and expressly averred to be hers. The husband was regularly joined with the wife in the action and thus satisfied the legal requirement. That the wife may appeal and prosecute the action afterwards alone is fully sustained by the case of Murray v. Keyes, 11 Casey 384. See also 1 Wright 251; 1 S. & R. 492. The declaration shows that the wife contracted the debt -and that it was contracted for that which was necessary to preservation and enjoyment of her separate estate.' Thus bringing the case within the decisions already cited. This is a sufficient answer to all the errors assigned, and the judgment is affirmed.