Craft v. Rolland

Park, J. The principal ground for a new trial of this cause is based on the claim that the husband of the defendant was originally liable to pay the plaintiffs’ bill. And here we think the defendant is in error. The goods were purchased by the defendant solely on her responsibility. The husband was not known in the transaction by either party. She intended to pledge her credit and her separate estate in payment, and offered them to the plaintiffs in exchange for their goods, which offer was accepted, and the property delivered by them on her credit alone, although they knew that she was a feme covert, living with her husband. It is clear that the plaintiffs have-no claim against the husband for the price of the goods, and the defendant therefore cannot make defence- on the ground of his liability. Bentley v. Griffin, 5 Taunt., 356; [498] Shelton v. Pendleton, 18 Conn., 417; Taylor v. Shelton, 30 Conn., 122; 2 Kent Com., 146; 1 Swift’s Digest, 35. In certain cases a wife may bind her husband for necessaries against his consent and express prohibition. The principle was established for the benefit of the wife, to save her from suffering, and starvation in certain cases. But it is not claimed that the case we are considering comes within that principle, and we therefore dismiss it without further comment. In all other cases where goods are purchased by the wife, the liability of the husband depends upon agency, ’either express, or implied from his acts. Here the wife did not pretend to act as agent of the husband. She acted for herself alone, which destroys entirely all claim of agency in the transaction. In the recent case of Wells v. Thorman, 37 Conn., 318, we decided, in accordance with many other decisions of this court, that a married woman may contract debts and render her separate estate liable in equity for the payment. We held in that case that her separate.estate was liable on a contract made with her which was no stronger to charge her separate estate than is the present one. That case, then, is decisive of this, to the extent that the defendant originally bound her separate estate in equity to pay this claim. If her estate was bound, then it follows that she herself was under, a moral and equitable obligation to pay the claim, which was a sufficient consideration for the promise which she subsequently made to pay, after her abandonment by her husband. Cook v. Bradley, 7 Conn., 57; Lee v. Muggeridge, 5 Taunt., 36; Chitty on Contracts, 46, 47; Wennall v. Adney, 3 Bos. & Pul., 249, note. When that promise was made she was, in legal contemplation by our statute, a feme sole, and her promise became binding on her in law as well as in equity. Gen. Statutes, tit. 13, sec. 25. This view of the case renders it unnecessary to consider the claim that has been made regarding the statute of frauds and the application of the payment that was made, for if the husband was not originally liable they have no application to the case. [499] Iii regard to the amendment of the declaration that was allowed by the court below, it seems to us that it did not change the form or ground of the action. The ground of the action manifestly was an indebtedness due from the defendant, Catherine Rolland, to the plaintiffs. The husband was attempted to be joined for mere conformity. The allegations are all in the singular number. One of them is, “ that the defendant her said several promises aforesaid not regarding, has never performed the same, &c.” It is true that the allegation just preceding the one quoted uses the word “ he” when speaking of the promise made to the plaintiffs to pay the indebtedness when requested. But it appears that this allegation in the original declaration was in a printed form, and the omission to insert the letter s, before the letters h and e, which were in print, to make the word she, was clearly a mere mistake, for the allegation quoted, referring to it, uses the word her — “ her said several promises aforesaid not regarding &c.” This word was written; thereby showing the unmistakeable intention of the draftsman to make all the allegations solely against her. It appears' then that there was no allegation against the husband. The officer was merely directed to summon him to court if found within his precincts. But he was required to answer to nothing if he should be summoned. He was not found by the officer, and we think the court properly allowed the amendment. Nash v. Adams, 24 Conn., 33; Baldwin v. Walker, 21 Conn., 168; Beers v. Woodruff & Beach Iron Works, 30 Conn., 308. The court was not called upon under the pleadings to consider the sufficiency of the declaration as amended. Advantage could be taken of that only by a demurrer, or a. motion in arrest of judgment. There is no error, and a new trial is not advised. In this opinion the other judges concurred.