Cole v. Shurtleff

The opinion of the court was delivered by Peout, J. In this case the county court decided that, upon the facts reported, the defendant was not entitled to recover the amount of the disputed items, they being for articles of clothing-purchased and fffrnished by the defendant to the plaintiff’s deceased wife about a year before their marriage. The defendant was her father, and he testified before the auditor, that the articles in question were bought for her by him, with the understanding that she should pay for them. She died prior to the commence [314] ment of the action, but the report shows that, both before and after her marriage to the plaintiff, he promised the defendant to pay for them, as disclosed by the report. I. As to the admissibility of the defendant as a witness. The objection to him as a witness, proceeds upon the ground that, the plaintiff’s wife being a party to the contract existing between her and her father, the defendant, and she being dead, the defendant was not an admissible witness. Gen. Sts., ch. 36, § 24. It is true the agreement between the defendant and the plaintiff’s wife, found by the auditor, by which she was under obligation to pay the defendant, was material, but the issue in the action and on trial was not upon that agreement. That was whether or not the plaintiff undertook, and promised the defendant, to pay him for the articles of clothing in controversy. Without such promise or undertaking no liability whatever, upon the facts, was resting upon the plaintiff, by which he was under a legal obligation to pay the defendant his claim. The contract of Mrs. Cole, the defendant’s daughter, with her father, the defendant, was, then, simply a fact bearing upon the plaintiff’s liability and the defendant’s right of recovery, but collateral to the plaintiff’s contract or promise, upon which the defendant’s right of recovery necessarily depended. If this is so, the contract of the plaintiff’s wife was in question before the auditor only as every collateral or incidental fact is which may have a bearing upon the ultimate question to be determined in the cause, but which does not directly involve the party’s liability, or right of recovery. As the promise relied upon by the defendant, was made as between these parties to the action, and neither being dead, the disqualification contemplated by the statute, does not apply. Manufacturers’ Bank v. Scofield, 39 Vt., 590 ; Baxter v. Knowles, 12 Allen, 119. The design of the statute was to exclude a party from testifying when the other party to the contract in issue and on trial has died, and when in the action such deceased party is represented by an executor or administrator, and contemplates a suit or proceeding, the determination of which may affect the estate of the deceased party. In this case, nothing of that kind is attempted or can result from the proceeding, whatever may be the determ [315] ination of tbe suit. Should the defendant recover against the plaintiff and to the extent of his claim, the estate of the plaintiff’s wife, if she left any, remains untouched, and creditors, heirs,, legatees or representatives, as such, from the nature of the claim, can suffer no harm. The case itself is, therefore, one to which the reason and spirit of the statute have no application^ Upon these views, the defendant was an admissible witness. l II. The plaintiff’s promise made before his marriage to the defendant’s daughter, was a naked promise to pay her debt. She not being discharged or released from its payment, and it resting entirely in parol, it was collateral and can not be enforced. Anderson v. Davis, 9 Vt., 136; Fullam v. Adams, 37 Vt., 391. And then, again, the promise was, as the report shows, a mere agreement that the defendant’s claim might offset as against the claim of the plaintiff: “ the plaintiff agreed it might.” It does not appear that the defendant assented to this proposed application ; but assuming he did, it not having been done, the case in all aspects, so far as this question is concerned, is within the statute of frauds. Brand v. Brand, 49 Barb., 346. III. As to the plaintiff’s promise to pay after his marriage. The report shows that the plaintiff promised to pay for these articles “ after his marriage,” and it is insisted that, by the marriage, the debt of the wife became the debt of the husband, and that he is under a fixed and absolute obligation to pay it. As to this antenuptial debt of the wife, the plaintiff, as a legal consequence of his marriage, became liable to pay it; but this was a joint liability with the wife. She could not have been sued alone, neither could the husband. It is an elementary rule, that when a feme sole who has contracted a debt, marries, the husband and wife must, in general, be jointly sued in an action brought for its recovery, even though the husband has expressly promised to pay it. Chitty’s PI. (13th Am. ed.), 57. This liability of the husband, arising and existing as a consequence of the marriage, and which can be enforced only in a joint action against both, is of a temporary or qualified nature. It terminates on the death of the wife, unless enforced during coverture by the recovery of a judgment, and his liability in this respect is of the same quali316 ffed character incident to his rights, as husband, to her choses in action. Unless he reduce them to possession during coverture,. and with the intent to make them his own, they are not his absolute property, but they belong to her representatives. Reeve’s Dom. Rel., 53-143 ; Buckner v. Smyth et al., 4 Des., 371 ; Heard et ux. v. Stamford, 3 P. Wms., 410 ; Howes, executrix, v. Bigelow, 13 Mass., 384; Wilson et al. v. Bates, admr., 28 Vt., 765 ; Barber v. Slade et al., 30 Vt., 191; Mitchinson v. Hewson, 7 Term, 344. These principles proceed upon the obvious ground that the debt sought to be recovered in the one case, and the property or choses in action in the other, are the wife’s. It is for this reason, and because the debt is hers, that the husband, in an action brought for its recovery, must be joined, which would not be the case, as Reeve, J., says, if the husband were to be considered the debtor. If, by virtue of the marriage, “ the debt had been transferred to the husband, it would not survive against the wife; but it does survive against her; and this is perfectly consistent with the idea that she is considered by the law as the debtor.” Reeve’s Dom. Rel., 53; 2 Kent’s Com., 145. Upon this view, it would seem that the promise relied upon, referring to, and applicable only to, the debt of another, and not being supported by any consideration, nor in writing, was invalid as within the statute of frauds. But however that may be, the question stands upon clear reasons upon another ground. The defendant’s right of recovery for these articles depends upon the naked fact that the debt was contracted by the plaintiff’s wife dum sola, and that, subsequent to the marriage and during coverture, the • .plaintiff promised to pay it. The fact that the plaintiff was once liable to pay the claim, in another right, so to express it, and in consequence of the legal liability resting upon him as the husband of the defendant’s deceased daughter, gives the promise no additional efficacy or legal force, and can make no difference in the determination of the question. It was nevertheless a promise not made upon any consideration. When made, the plaintiff was liable for the debt, but liable as husband; and if, as remarked by Collamer, J., in Russell v. Buck, 11 Vt., 166, the consideration [317] of the plaintiff’s promise was Ms existing liability, and in consideration thereof he promised to pay the defendant’s claim, it created no new legal liability, but left “the debt and the parties as they were before. Such a promise might indeed affect the claim as to the statute of limitations, but would be no ground of action in itself.” It was not founded upon anything beneficial to the plaintiff ox prejudicial to the defendant. And in Rann et al., executors, v. Hughes, admx., reported at length in a note in 7 Term Reports, 346, it is said and held that, “ if I promise generally to pay upon request what I was liable to pay on request in another right, I derive no advantage or convenience from this, and therefore there is not a sufficient consideration for” the promise. The promise relied upon, thorefore, being insufficient as giving a legal ground of recovery, and the defendant not having perfected his right as against the plaintiff in respect to Ms claim during covert--fee, he is not entitled to be allowed the amount of the items in dispute. The judgment of the county court is affirmed.