Sorensen v. Sorensen

Brooke, J. (after stating the facts). Defendant presents his case in this court under 15 assignments of error, which it is unnecessary to consider seriatim. It is first urged that the court erred in holding the so-called assumpsit count sufficient to enable plaintiff to recover upon the quantum meruit. The count is in-artificially drawn, but under the liberal view now held as to pleading, it might be regarded as sufficient to support the judgment. In view of the conclusions we have reached upon another branch of the case, however, it is unnecessary to pass upon the question of pleading. Assuming the truth of the plaintiffs testimony, we find that she and her husband entered into a contract with defendant by the terms of which they and defendant undertook jointly to run defendant’s farm, the son doing the farming and the plaintiff doing the housework, in consideration that the defendant should, at his death, give the farm, one-half to each of them. From a very careful examination of the record we are satisfied that the defendant’s version of the arrangement is sustained, not alone by the great preponderance of the evidence, but by the circumstances surrounding it. However, we must, for the purpose of this discussion, assume that plaintiff’s testimony is true. Whatever work and labor she performed thereafter up until October, 1918, was performed in reliance upon said contract. No new or other contract was ever made thereafter. It is conceded upon all hands that the contract, if made according to plaintiff’s testimony, was illegal, and had it been legal when made and she performed services thereunder, her husband would have been entitled to her earnings notwithstanding the so-called married woman’s act of thia State. Glover v. Alcott, 11 Mich. 471; Tillman v. Shackleton, 15 Mich. 447; Randall v. Randall, 37 Mich. 563; Mason v. Dunbar, 43 Mich. 407; Harrington v. [435] Gies, 45 Mich. 374; Benson v. Morgan, 50 Mich. 77; Sines v. Superintendents of Poor, 58 Mich. 503. It is conceded, or at any rate the learned circuit judge instructed the jury, that plaintiff could not recover for the value of her services rendered prior to the passage of Act No. 196, Pub. Acts 1911 (3 Comp. Laws 1915, § 11478), which provides: “Each and every married woman in the State of Michigan shall be absolutely entitled to have, hold, own, retain and enjoy any and all earnings acquired by any such married woman as the result of her personal efforts; and to sell or otherwise dispose of any and all such earnings, and to make contracts in relation thereto to the same extent that any such married woman could have or do if unmarried.” Plaintiff proceeded thereafter as she had before to perform her services. It is the claim of the plaintiff (and the learned circuit judge so instructed the jury) that the passage of said act changed the relationship of the parties and that thereafter the law would imply an agreement between plaintiff and defendant to the effect that defendant should pay to plaintiff the reasonable value of her services. We find ourselves unable to agree with this view. Plaintiff went with her husband upon the farm of the defendant and there made it her home. Such services as she rendered were rendered as a member of her husband’s family, in her husband's home, and were the ordinary services a farmer’s wife renders in his own home. It may again be emphasized that after the passage of that act, plaintiff made no contract whatever in relation to her services. We are of the opinion that under the situation disclosed by this record, the statute (3 Comp. Laws 1915, § 11478) has no application. We first had the matter under consideration in the case of Gregory v. Oakland Motor Car Co., 181 Mich. 101, where it is said by Mr. Justice Stone: [436] “It will be noted that our statute above quoted gives, to each and every married woman the right to have, hold, own, retain, and, enjoy ‘any and all earnings acquired’ by her. Can it be said that, in the performance by the wife of the ordinary duties of the housewife as a helpmate in the home of her husband, she has ‘acquired’ the right to her earnings? We think not. If such construction were to be placed upon the statute, then the wife would have a right of action against her husband for any and all domestic services or assistance rendered in the household. We think the statute means that all earnings acquired or service performed by her as the result of her personal efforts in any separate business carried on by her in her own behalf, or any services performed by her for others than her husband, belong to her; but that her husband is entitled to her labor, companionship, society, and assistance in the discharge of those duties and obligations which arise out of the marriage relation, and that these belong to him. Where she has a separate business the wife may recover for loss of time as if she were sole. Fife v. City of Oshkosh, 89 Wis. 540 (62 N. W. 541); Fleming v. Town of Shenandoah, 67 Iowa, 505 (25 N. W. 752, 56 Am. Rep. 354).” Again, in Blair v. Seitner Dry Goods Co., 184 Mich. 304 (L. R. A. 1915D, 524, Ann. Cas. 1916C, 882), this court, speaking of the act in question through the late Justice Ostrander, said: _ “The legislature has relieved her of certain disabilities so called and has denied to her husband the right to her earnings and the profits of any business she may carry on. It has not, however, put her domestic duties and labor, performed in and about her home for her family, upon a pecuniary basis, nor meant to classify such duties as services, nor to permit her to recover damages for loss of ability to perform them.” It is claimed that the rules here laid down were avoided by the following instruction of the circuit judge: “I charge you further, that in order for you to give a verdict for anything, in favor of the plaintiff in this [437] case, you must be satisfied that she went to work, and performed services for the defendant in this case, which inured to his benefit, independent of her husband absolutely; and in the event you find that by a preponderance of the testimony, then you will only find or give her credit for such work as was performed by her during the period from August 30,1911, to December 15,1918. * * * “On the other hand, if you believe that she was not working for her husband, and that 'the contract, as claimed by defendant, was not made; but that she worked independently on these promises as claimed by the plaintiff, then she is entitled to recover reasonable value for her services rendered.” The difficulty with these instructions is that there is no evidence in the case to support them. Even under the void contract as testified to by the plaintiff there is no indication that she was to perform services for the defendant for his benefit “independently of her husband.” The judgment must be reversed and, inasmuch as under our view of the plaintiff’s testimony no recovery can be had by her, there will be no new trial. Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.