Dunifer v. Jecko

Black, J. The plaintiffs are husband and wife, and are engaged in the publication of a newspaper. They sued the defendant on an account for advertisements and local notices published at his request. He filed an off-set for merchandise sold to plaintiff which was made out against both of the plaintiffs. He was allowed his off-set in part, at least, and plaintiffs had judgment for the difference in their favor. No objection was made to the allowance of the set-off. The defendant insists there was a misjoinder of par-lies ; that the wife could not be a partner with her husband in business matters. A married woman who has no separate estate cannot, save in a few excepted casés, make a valid partnership contract. Bindley on Part. .84. But by force of the statute of this state (sec. 3296, R. S., 1879) any personal property of a married woman, belonging to her at the marriage, or which shall come to her during coverture by gift, bequest, devise, or purchase with her separate money or means, or be due as the wages of her separate labor, shall be and remain her •separate property and under her sole control. With respect to such property she must necessarily have the power to contract. How such contracts are to be enforced as against her and her property is not involved here. She may own property with others, and we can .see no reason why she may not with her husband. What her interest in this paper is does not appear. •She assists in the conduct of the paper. Defendant had mutual dealings with plaintiffs as partners, and received [285] the benefit of his set-off as against both, and this prima facie, to say the least of it, entitled her to sne with her husband. He is not in an attitude to complain as to parties: The wife here had a substantial interest in the controversy; she was not simply a nominal party; she was, therefore, competent to testify and was properly allowed so to do. Steffen v. Bauer, 70 Mo. 399; Wood v. Bradley, 76 Mo. 33. The instructions given present the whole case fairly enough and the judgment is affirmed. Ray, J., and Henry, C. J., dissent. The other judges concur.