Starke v. Malone & Foote

PETERS, C. J. This is a suit at law against the husband and wife, founded on a contract for articles of comfort and support of the household, suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law. No defence was interposed on the trial in the court below, and there was a verdict and judgment for the plaintiffs, for the sum claimed in their complaint. [171] From this judgment the defendants in the court below appeal to this court, and here assign this judgment for error. Our statute, regulating the rights of a married woman owning a separate estate, is the authority under which this action is instituted. This fully sustains it. This declares, that “ For all contracts for articles of comfort and support of the household, suitable to the degree and condition in life of the family, and for which the husband would be responsible at .common law, the separate estate of the wife is liable; to be enforced by action at law against the husband alone, or against the husband and wife jointly.” Rev. Code, § 2376. Here, the declaration alleges that the suit is brought to recover on a contract for articles of comfort and support for the household, and that the wife was the owner of a separate estate, specifying the same by proper description, as required by the statute. There is a verdict of a jury assessing the value of the goods or articles furnished. The judgment then proceeds in these words: “ It is therefore considered by the court, that the plaintiffs do have and recover, of and from the defendants, the sum of eighteen hundred and ninety-nine X%5T dollars damages, together with the costs in this behalf expended ; for which let execution issue, and - against the separate estate of Eugenia C. Starke»” Mrs. Starke is the wife of the other defendant, John D. Starke.- This judgment is founded on the pleadings, and it follows the verdict. It is proper and sufficient; and it may be satisfied out of the property of the husband, or out of the separate estate of the wife, not exempt from sale under legal process. 2. It is true that the complaint does not state that the wife’s estate is a separate estate held under our statute ; but this will be presumed, when there is no objection to the complaint in the court below. The judgment of the court below is affirmed.