Williams v. Brainerd

The opinion of the court was delivered by Redfield, J. This action is indebitatus assumpsit in favor of the husband and wife, and the question arises on general demurrer to the declaration. There are no averments in the declaration of meritorious cause of action in the wife and special promise to her, nor other reason alleged why the wife is joined with the husband. It was held in the case, Gray v. Estate of Rogers, 18 Vt. 342, that indebitatus assumpsit or book account would not lie in favor of husband and wife to recover for her personal services, where a special promise was made to her, but that the action must be brought on the special promise ; although, in that case, the parties were properly joined. Mr. Chitty, in 1 Chit. Pl. 34, says : “ When the wife is joined in the action, in these cases the declaration must distinctly disclose her interest, . . . and there is no intendment to that effect.” But it is claimed by the plaintiff that, by force of recent statutes in this State, the wife has the right to hold personal property, and vindicate her right thereto, both at law and in equity ; and that her rights in these respects have been much enlarged, and for these reasons, this well-settled rule of pleading should be disregarded. There are more cases in which the wife may properly be joined with her husband, than when this rule of pleading first obtained ; but still, the cases are exceptional. And this requirement in pleading was distinctly affirmed in quite a recent decision of this court. In Baird v. Fletcher, 50 Vt. 603, Royce, J., says : “ It is an elementary rule of pleading, that when the wife is joined with the husband in the action, and she is considered the [394] meritorious cause of action, the declaration must disclose distinctly her interest, and showing what respect she is the meritorious cause of action”; and that “the defendants should have demurred to the declaration, and in that manner raised the question of its legal sufficiency.” We do not feel at liberty to overrule a well-settled rule of pleading, so recently recognized by this court. Judgment affirmed.