Trieber v. Stover & Co.

English, Ch. J.: On the 8th August, 1873, Stover sued David Trieber and Carrie Trieber his'"wife, in the Phillips Circuit Court, on an open account contracted by the wife. The complaint alleged: That the defendant, Carrie Trieber, is the wife of defendant, David Trieber, and is engaged in the business of merchandising in her own name. That defendant Carrie Trieber, is indebted to the plaintiff in the sum of $1,012.93, for goods and merchandise sold and delivered by plaintiff to the defendant, Carrie Trieber, and for interest upon money due from said defendant, Carrie, to plaintiff, -particulars of which are set out in an account herewith filed, together with the credits, etc., leaving balance, etc., prayer for judgment, etc. Defendants filed an answer, in which they admit that they are husband and wife, and that the wife, defendant, was engaged in the business of merchandising in-her own name; and they controvert items in plaintifffs account, set up a counter claim, etc. There was a reply, trial by jury, verdict and judgment for plaintiff. The defendant moved in arrest of judgment on the grounds : First — That the suit was at law against husband 'and wife, upon a contract made with the wife alone during coverture. Second — That the complaint shows no legal cause of action against defendants. Third — No - action at'law lies upon the facts set out in the' complaint, etc. The court overruled the motion and defendants appealed: First — The first question presented on the appeal is whether the wife can be sued in a court of law on her’ separate contract as a trader. It is insisted that she can be sued in equity only upon sucha contract. At common law, as a general rule, a married woman could not make contracts, or sue or be sued upon them, though she might by contract bind her separate property in equity. Dobbins and wife v. Hubbard, 17 Ark., 189; Countz v. Marklin, MSS. Op.; Wood and wife v. Terry et al., MSS. Op. But by act of April 28th, 1873: “A married woman may bargain, sell, assign and transfer her separate personal property, and carry on any separate trade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman, from her trade, business, labor or services shall be her sole and separate property, and may be used or invested by her in her, own name; and she may alone sue and be sued in the courts of this State, oh account of the said property, business or services.” Gantt’s Digest, sec. 4194. And by sec. 4199, ib.: “Whenever a judgment shall have been recovered against a married woman, thé same may be enforced by execution against her sole' and separate estate or property, to the same extent and in the same manner as if she were sole.” • And-by sec. 4487,'ib.: “A married woman may be sued upon contracts made by her in respect to her sole and separate property, or in respect to any trade or business carried on by her under any statute of this State.” The effect of these provisions of the statute was, no doubt, so far to remove the common law disabilities of a married woman as to enable her to carry on, in her, own name, and for her own benefit, a separate trade or business, t#* make contracts in such trade or business, and to sue and be sued upon them in the courts as if sole — except that she cannot sue her husband in the law courts. But must she be sued in a court of equity upon every contract made by her in carrying on such separate trade or business, regardless of the ordinary rules which distinguish matters of equitable, from matters of legal cognizance ? Such construction of the statute is not plausible. If she employ a carpenter to fit her up a cofinter and shelves in her business house at a charge of fifty dollars, and is delinquent in paying the bill, must he sue her in chancery upon it ? If a merchant sell her a bill of goods, no matter how small or large, in her separate line of trade or business, and she fails to pay the bill, must he resort to a suit in chancery to collect it? If she sell a femme covert a bonnet, and fits her up a dress, and her husband refuses to pay the bill when presented to him, must she resort to chancery to have it decided that the bonnet and dress were necessaries for the wife, suitable to her condition and rank in society, and that the husband is bound to pay for them ? Such a construction of the statute would defeat its manifest policy, whether it may be deemed wise or unwise. If a merchant sell a married woman, engaged in carrying on a separate trade or business, goods, and take a mortgage upon her stock to secure the payment of the price of the goods, chancery is the appropriate court to foreclose the mortgage; but why a creditor,, upon an ordinary sale of goods to a married- woman thus doing business, should be required to sue her in. a. court of equity to collect the bill, under the statute in question, we are unable to percieve. Under similar statutes in other states, the wife may sue or be sued alone in the courts of law, where the subject matter of the suit is cognizable in the law courts. Going v. Sarah A. Orns, 5 Kansas, 85; Presnell s. Herbert (replevin suit by wife), 34 Iowa, 539; Logan v. Hall, 19 Iowa, 496; Boos v. Gomber (suit by wife alone for trespass on her separate property), 24 Wis., 499; Pickens et al. v. Oliver, 29 Ala., 529; Spears, adm’r, v. Lumkin, 39 Ala., 600; Haynes v. Stoveall, 23 Texas, 625; Stull v. Howard (suit by wife for her trunk), 26 Indiana, 456; Puterbaugh’s Plead, and Pr., 64; Madden v. Gilmer, 4 Ala., 637; Zachary v. Cadenhead, 40 Ala., 236; McKune v. McGarvey et al., 6 California, 497 (this was a suit against two married women, acting as sole traders, on a note made by them); Emerson v. Clayton (replevin by wife), 32 Ill., 495 ; Davis v. Herrick (trespass by wife against sheriff for attaching her sleigh), 37 Maine, 394; Mininger v. Commissioners, 10 Minnesota, 134; Bracket s. Drew, 20 New H. 442; James, ex’r, s. Taylor, 43 Barb., 530. But the husband is not liable with the wife upon a contract made by her in her outside adventures as a separate trader. A section of the statute which we have been considering declares, “ That no bargain or contract entered into by any married woman in or about the carrying on of any trade or business, under any statute of this State, shall be binding upon her husband, or render him or his property in any way liable therefor.”' Gantt’s Digest, sec. 4195. There was no allegation in the complaint to charge-the husband; no cause of action shown as against him, and -yet a joint judgment was rendered against the husband and wifefor $1036.60. Had he demurred to the complaint, on' the ground that no cause of áetion was shown by it against him, the demurrer should have been sustained. Newman Plead, and • Prac., 667. The judgment against him should have been arrested for the same cause. The judgment must be affirmed as to the wife and reversed as to the husband. Gantt’s Digest, sec. 1103.