Botts v. Knabb

Opinion, Mr. Justice Sterrett : Plaintiff’s contention is, that the pleadings and evidence would have warranted the rendition of a verdict in his favor, and hence the court erred in not submitting the case to the jury. The sufficiency of the declaration cannot be doubted. It is in due form, setting forth substantially that Mrs. Knabb, one of the defendants, being sole owner in her own right of an improved farm on which was a growing crop, employed plaintiff to harvest, house and market the same for her: that the services thus contracted for were fully performed, at her request, in and about the management of her separate estate, and that the same were “ necessary for the preservation, enjoyment, use [32] and profit of the said separate estate by the said Sarah Knabb,” etc. The fact that Mrs. Knabb was a feme covert, at the time of making the alleged contract, was conceded; and the only issues of fact were raised by the pleas of non assumpsit, payment with leave, etc. Evidence tending to sustain every material averment in the narr was introduced, but the learned judge nonsuited the plaintiff and subsequently refused to take off the judgment, assigning as a reason therefor, that “ a married woman is not liable at common law upon her contracts; and, as no statute, according to the construction given to our Married Woman’s Act, covers the ease of this plaintiff, it must be decided that he cannot recover, although his claim is one that it seems ought in good conscience to be paid.” It thus appears that the nonsuit was sustained on the broad ground that, a married woman, owning in her own right an improved farm, is incapable of binding her separate estate by a contract for services necessarily required and rendered in harvesting, housing and marketing, for her benefit, the growing crop on said farm. As a legal proposition this cannot be sustained. Our Married Woman’s Act of April 11,1848, declares : “ Every species and description of property.....which may be owned by or belong to any single woman, shall continue to be the property of such woman as fully after marriage as before; and all such property of whatsoever name or kind, which shall accrue to any married woman, during coverture, by will, descent, deed of conveyance or otherwise, shall be owned, used and enjoyed by such married woman as her own separate property.” In view of these express provisions and the implied powers necessarily incident to such ownership, use and enjoyment, the authority of Mrs. Knabb to make the contract in question, appears to be so manifest that it scarcely admits of any doubt. While perhaps the precise question now presented has never been distinctly ruled, the underlying principle has been so conclusively settled that it is of easy application to the undisputed facts of this case. In Lippincott v. Hopkins, 57 Penn. St. 328, and Lippincott v. Leeds, 77 Idem 420, it was held that a married woman is liable for such repairs of her separate estate, made at her request, as are necessary for its preservation and enjoyment. As was said in the latter case [33] such liability is the necessary result of the rights of the wife and the disabilities of the husband; that the right to own, use and enjoy her separate real estate would be comparatively valueless without the power to take care of and preserve it from ruin, and hence the rights of property conferred necessarily imply a power to repair. Again in Germania Savings Bank’s Appeal, 95 Idem 329, it was held that a married woman’s power to contract for necessary improvements as well as repairs to her real estate is inseparably incident to her right to acquire and hold the same to her own separate use. The principle of these and other cases that might be cited is clearly applicable to the case at bar, and is necessarily decisive of the question presented by the specifications of error. Judgment reversed and a procedendo awarded.