Jordan's Adm'r v. Hubbard

CHILTON, C. J. —Hubbard and wife sued Besteder, as administrator of Henry Jordan, to recover for services alleged to have been rendered by the wife for Henry Jordan, the intestate, in his lifetime, and pending the coverture of Mrs. Hubbard. No pleading, except the complaint, appears of record. In the bill of exceptions, however, it is recited, that the defendant pleaded not guilty, and the statute of limitations of three years. The plea of “ not guilty” may be a mistaken recital. No doubt the general issue was designed. Be this, however, as it may, such mispleading is not an error which could avail the party who commits the mistake.—Stone v. Gover, 1 Ala. 287, [436] The proof conduced to show, that the plaintiff, Mrs. Fin-netta Hubbard, had, during her coverture with Wiley Hubbard, rendered services in waiting upon, nursing, and administering medicines to the defendant’s intestate, for a period running back some twenty years ; and that, before his death, said Jordan said to divers persons, that he would provide for her in his will, if he ever made one. It was proved, that on one occasion the deceased went to the house of Besteder, the defendant, to get Mm to write his will; that Besteder was not at home, and on his return, deceased met with one Woodward, and told him of his having gone to Besteder’s, and the object of his visit, — that B. was not at home, — that he was satisfied lie would not live long, and never expected to see Besteder again ; “and that he (deceased) wanted him (Woodward) to bear witness that he wanted Besteder to pay Mrs. Hubbard (one of the plaintiffs) five hundred dollars for the services she had rendered him.” Neither of the plaintiffs was present at this conversation. ' It was also proved by the daughter of the plaintiffs, that she had often heard said Jordan in his lifetime,- but not in the presence of either of the plaintiffs, say that he wanted her mother to be paid three hundred dollars, after his death, for the services she had rendered him. The deposition of the daughter was objected to, upon the ground that the certificate of the commissioner who took it did not conform to the requirements of the law ; but no specific objection is made, and we are unable to see any substantial ground of objection to the certificate. The charge of the court, as based on the foregoing proof, was, “ That if the jury believe that there was an acknowledgment of an existing indebtedness, within three years before the institution of this suit, on the part of said Jordan, for services rendered by the plaintiff Finnetta, and that he directed it to be paid to her, then what ho said was equivalent to a promise to pay her, although not said in her presence ; which promise would take the case without the influence of the statute of limitations, and entitle the plaintiffs to a recovery.” This charge was duly excepted to, and the defendant asked several charges, which were refused. The substance of these was — 1st, that the subsequent promise, to be availa [437] ble as an avoidance of the statute, must have been made to Mrs. Hubbard in person or directly, for services performed by her during the marriage; 2d, that if the jury find there was no subsequent promise to pay in writing, and no partial payment made before the bar of the statute was complete, then the plaintiffs could not recover. The refusal of the court to give these charges was also excepted to. The counsel for the appellant objects to the charge, because it concedes that husband and wife may join to recover upon a promise made to the wife, for services rendered by her during the coverture. He insists, that the Code gives the action solely to the wife. The right here accrued before the Code went into effect ; and as the law then stood, the husband and wife could join, and if the husband died before recovery, the right to prosecute the suit survived to the wife. But concede that the Code controls the remedy; the action is nevertheless well brought. The demand is not the separate property of the wife. She is the' meritorious cause of the action,- and the promise was made to her ; but still, it is but the price of her services, which belongs to her husband, upon his reducing the same to possession, or electing to treat the same as his by certain acts of ownership or dominion over it. Section 2181 of the Code makes no change upon the common law, except in so far as it provides for the maintenance of a suit for or against a married woman, who must sue or be sued alone in relation to her separate estate. By the common law, this suit was clearly maintainable by husband and wife.—Philliskick v. Pluckwell, 2 M. & S. 393; Brashford v. Buckingham and Wife, Cro. Jac. 77, in Excheq.; S. C. in B. R., ib. 205; Morris v. Booth and Wife, 8 Ala. 907. But, it is argued, that the Code (§ 2490) requires that, in order to avoid the bar of the statute, there must be a partial payment made before the bar is complete, or an unconditional promise in writing signed by the party to be charged. So it does in cases to which it applies ; but this section was not intended to defeat or take away rights which had vested under the previous law. If, under the previous law, a verbal promise had renewed the demand, so that the obligation to pay was a subsisting valid one, it would be gross injustice upon the rights of parties to sweep them away by a subsequent [438] law requiring other and higher evidence of their validity.— Whether, indeed, such a law would not violate the spirit of the constitution, as impairing the obligations of the contract,is a question we need not now decide. Certain it is, that such retrospective operation is always dangerous, — is usually regarded odious, and never indulged unless it is clear from the statute itself that such was the design of the Legislature. The general rule is, that laws existing at the time of the contract, govern its essence and extent; while those existing at the time of seeking to enforce it govern the remedy. But it is not competent to destroy the right, which is the essence of a contract, under the pretext of regulating the remedy, nor to deprive a party of all remedy, which is equivalent to a. denial of the right.—1 Bibb 569; 2 ib. 202. In our opinion, section 2490 of the Code applies to all partial payments, or attempts to avoid the statute of limitations by subsequent undertakings, made since the 17th January, 1853, when the Code went into effect, but not to those made previous to that time. Such was the decision of the Court of King’s Bench, in Gilmer v. Shuter, 2 Mod. 310; see, also, Huffman v. Huffman, at the present term. But it is further contended for the appellant, that the admission made by the intestate in this case was not of that character which would remove the bar, and entitle the husband and wife to their joint action — that it was testamentary in its nature, amounting to a bequest, and not to an admission of an indebtedness. We do not think this position tenable. The intestate desired Woodward to bear witness that he wanted Besteder to pay Mrs. Hubbard five hundred dollars, not as a bequest, nor as a gratuity, but in consideration of or “/or” the services she had rendered him. Here is a distinct acknowledgment of services rendered by the wife, and a positive direction or request that the defendant below should pay five hundred dollars in consideration of them. An acknowledgment of an indebtedness, and a present willingness or liability to pay, is all the cases require to take the demand without the bar of the statute (Crawford v. Childress, 1 Ala. 482; Townes & Nooe v. Fergusson, 20 ib. 147; Ross v. Ross, ib. 106; Poole’s Ex’r v. Relfe, 23 ib. 701); and whether this acknowledgment be made to the creditor, or to [439] a third person, riiakes no difference—it is equally operative. St. John v. Garrow, 4 Por. 223; McRea v. Kennon, 1 Ala. 295. The admissions of the wife, made since the suit was instituted, that she had received pay for the services, &c., were properly excluded. It is well settled, that where the husband sues for the wife’s wages, the fact tjiat she earned them does not authorize her to bind him by admissions of payment; nor can her declarations affect him, where he sues with her in her right, for in such cases the right sought to be enforced is his own, though it was acquired through her instrumentality. 1 Greenl. Ev., § 185; Hall v. Hall, 2 Str. 1094; Meredith v. Footner, 11 Mees. & W. 202; Perry v. Graham, 18 Ala. 822-26; 2 Phil. Ev., (C. & H. Notes,) p. 152, note 160. W e perceive no error in the several rulings of the court. Let the judgment be affirmed.