Holmes v. Reynolds

The opinion of the court was delivered by Tart, J. The questions in this case arise upon demurrer to the declaration. The defendants are husband and wife. The original declaration is in the common counts in assumpsit. Under them a recovery can be had for a joint ante-nuptial debt; it is therefore good upon demurrer. The new count alleges an indebtedness contracted by Ellen, at Boston, in the State of Massachusetts, for merchandise, and while she was the wife of the defendant Henry; that under the laws of that State she had the legal capacity to contract said indebtedness, and to carry on business, afid to bind herself to the payment of such indebtedness ; and that in consideration of such indebtedness the defendants promised to pay the same ; it alleges a joint promise to pay an indebtedness contracted at the time of the promise by one of the promissors. The chief contention in this case is as to the liability of the defendant Ellen. The facts alleged are admitted by the demurrer. The count sets forth a contract valid where it was made ; and being valid there, it is by the general law of nations, held valid everywhere, by the tacit or implied consent of the parties. Story on Con. of L., sec. 242, (1). The validity and interpretation of contracts are governed by the laws of the country where they are made, Wilcox v. Hunt, 13 Pet. 378 ; but the remedy must be administered according to the lex fori; pursued by the means which the law points out where the action is brought. Story on Con. of L., chap. XIV. Contracts are not, proprio vigore, of any efficacy beyond the territory of the State where made ; the effect given them elsewhere is from comity, not of strict right. How far that comity ought to extend is left to the courts in the jurisdiction where the remedies are sought. It does not prevail where the contract is in violation of the laws, in that jurisdiction, of God, or nature, against good [42] morals, religion, public rights, or public policy: but no such question, unless the one of public policy, arises in this case, as we presume the transaction was a legitimate one. The only question as it seemed to us which can arise is the one whether it is against public policy to enforce such a contract. By the strict rules of the common law there was an utter incapacity on the part of the wife to enter into any contract; but the tendency of modern legislation is to remove such incapacity and empower her to make contracts the same as if sole ; and in this State, at the time this suit was brought, a married woman was vested by statute, No. 105, Acts of 1880, with the power of carrying on business in her own name, and bringing suits, (and was liable to be sued,) in connection therewith, the same as if unmarried ; in fact, of making the very contract which is sought to be enforced in this action ; and the law also provided the remedy to enforce such a contract. Our law therefore permitting such contracts, and enforcing them, there is no principle of public policy which should prevent maintaining the action. The contract alleged being a valid one, obligatory upon the defendants, and not falling within any of the exceptions relating to the remedy, should be enforced by the courts of this State. This same doctrine has been held by the courts of our sister States in Milliken v. Pratt, 125 Mass. 374, and Wright v. Remington, 41 N J. L., 48. Where the wife has the capacity to contract independently of her husband, he would not be liable by virtue of his marital relations upon contract entered into by her, but there is no reason why he cannot jointly contract with her in all cases where she has the capacity to contract, and as the new count alleges a promise by both defendants, based upon a valid consideration, viz., a sale of goods to the defendant Ellen, it is sufficient upon demurrer. The judgment of the County Court is reversed, but at the request of the defendants the cause is remanded for them to answer over.