King v. Mittalberger

Wagner, Judge, delivered the opinion of the court. The objection taken to the admissibility of a portion of the evidence, because the question that it was in answer to was leading, cannot be held good in this court to the extent of authorizing a reversal on that ground. The question was leading in its character, but leading questions are sometimes permissible in a direct examination. When and under what circumstances they are so rests in the sound discretion of the court trying the case to determine, and its decision is not assignable for error. (Meyer v. The People’s Railway, 43 Mo. 523; 1 Greenl. Ev., § 435.) There was no error in admitting the suit instituted in the Circuit Court in' evidence. The objection taken to its admission was that the parties therein mentioned were different from those described in the plaintiff’s petition. But that suit was brought in the name of the defendant to this action, as plaintiff, and her trustee was joined with her; it was therefore virtually her suit, and [185] the joinder of her trustee did not make the parties so different, or constitute such a fatal variance, as to justify the exclusion of the evidence. (Wagn. Stat. 1033, § 1.) The present action was brought on a special contract for pro fessional services rendered by the plaintiff to the defendant. The defense made was a denial of the contract, and on the evidence the jury found for the plaintiff. The only question requiring any consideration is whether the action is maintainable. It seems that when the alleged contract was made and the services were performed the defendant was a married woman possessing a separate estate. But when this action was brought her husband was dead and she was discovert. The suit in which the services were rendered and for which compensation is claimed was prosecuted for her sole benefit and related to her separate estate. It is now contended, however, that her coverture disabled her from making the contract, and that it was wholly void. Had the contract been a personal one and a mere legal promise to pay, this would be unquestionably true. But a married woman possessing a separate estate is treated as a feme sole in regard to that estate, and may dispose of it and do whatever is necessary for its protection. The defendant had full and complete authority to employ attorneys to maintain her rights in the estate, and a liability to pay for their services was thereby created. If the plaintiffs had attempted to obtain their pay while the defendant was a feme covert they could not have maintained their legal action, but would have been under the necessity of resorting to a proceeding in equity to subject the estate specifically to the payment of the demand. But the claim is a valid one, the defendant is now sui juris, and we do not perceive any good reason why the action may not be maintained against her, as it appears that her separate estate is still in existence. Judgment affirmed. The other judges concur.