Gay v. Estate of Rogers

The opinion of the court was delivered by Royce, J. This action was brought to recover for services, rendered to the defendant’s intestate by the plaintiff Amy Gay, for which the intestate promised that she should be well rewarded. The account-sufficiently shows, that the services were rendered during her coverture. The first exception to the report is, that she was admitted to testify before the auditors, against the defendant’s objection to her competency. It was decided in Carr v. Cornell, 4 Vt. 116, that in an action on book account, brought by or against the husband alone, his wife cannot be called as a witness; not in his favor on account of their identity of interest, nor against him, on the ground of policy. But the statute has provided, that all the parties to such a suit may be examined on oath in relation to the several accounts; and this is construed, as well to entitle each party to the benefit of his own testimony in evidence, as to subject him to examination by his adversary. There was no error, then, in permitting the wife to be examined on oath in this ease, for she was a party plaintiff of record. It does not appear that she was examined upon any fact, to which a party might not legally testify. [345] Upon the second exception it is sufficient to say, that if the property or service of the wife has been the meritorious cause of action, and an express promise of payment is made to her, she may be joined with her husband in an action to enforce payment. At the same time the husband, if he so elects, may sue alone. This has been settled law for ages. The remaining question is, whether a joint action on book account was the appropriate remedy.. That the husband alone could sustain an action in this form, to recover compensation for these services, there is probably no ground to doubt. 'But the earnings of the wife are the legal property of her husband, and every implied promise to pay for her services would, consequently, be raised to him. The debt, in such a case, is necessarily his, and she has originally no legal interest in it. Reeve’s Dom. Rel. 130. 4 Mod. 156. Salk. 114. 1 Chit. Pl. 19. Hence we find it asserted by Judge Reeve, on page 132 of the work just cited, that — “ All the cases of contract, where the husband is permitted to join the wife, when he might have sued alone, are cases of express promises to the wife.” This shows, that, whilst the service of the wife will create a debt to her husband, the express promise to her is essential to form the basis of the joint action. And it would follow, that the joint action should be founded on the promise, and not directly and solely on the service. It is apparent, then, that the joint claim asserted in this action is not one arising by implication of law from the service rendered, nor one for which indebitatus assumpsit would be sustained. But the action on book account and indebitatus assumpsit are so far concurrent remedies, that the former will rarely lie, where the latter would not. They are alike founded on an original and direct indebtedness; such as the law, in the absence of any special stipulation, would raise from the consideration passing between the parties. We are therefore constrained to say, that, upon the last exception taken to the report, the defendant must prevail. Judgment of county court reversed, and judgment on the report for defendant.