Macfarland v. Heim

Sherwood, J. Action on a written lease bearing date August 1, 1888, to recover rent from April, 1889, to December of that year, both months inclusive. Lau was the lessee, Heim the guarantor, and Ellen J. Macfarland and husband the lessors — the land belonging to-Mrs. Macfarland, who held it, so it is stated, “as her general estáte Among the defenses set up by defendant in his answer, was a plea of failure of consideration, arising out of the fact that the alleged guaranty was signed by defendant long after the execution and delivery of the lease. The answer also denies an allegation of the petition that the lease had been assigned to him by Lau. The evidence very clearly establishes that after the execution and delivery of the lease, Harding, the janitor of the building, was sent out by the husband in order to have Lau give security in the form of a guaranty from Heim. After some ten or twelve days from the time of the execution and delivery of the lease, Heim was found, and gave the guaranty indorsed on the lease. There was no original understanding between Lau and Heim and the Macfarlands, at or before the execution of the lease, that Heim was to indorse the lease. Nor was the assignment indorsed on the lease by Lau, which purported to transfer the lease to Heim, on the lease, at the time the latter indorsed the lease as guarantor. Nor was that indorsement under seal. This is Heim’s testimony, and there is no contradiction of it, nor does the evidence show that Heim accepted the assignment or even saw it after it was made. It was made without his knowledge or acceptance, so he states, and of this, also, there is no contradiction. In these circumstances, the trial court very properly gave the following instructions: [333] “If the jury find that the assignment of the lease by Lau to Heim was voluntary on the part of Lau, or made under an arrangement between plaintiffs and Lau, and that Heim had no knowledge of said assignment and never accepted it, then it imposes no obligation or duty upon Heim, and he is not bound by it. “The court instructs the jury that, if they find from the evidence, that plaintiffs, on the first day of August, 1888, executed and delivered to Jacob Lau a written lease of the property in question, and that, afterward, without any new consideration passing from the plaintiffs to Lau, or to defendant, or from Lau to defendant, Heim executed a writing binding himself for the rent, such agreement was without consideration and defendant is not bound by it.” Nothing is better settled in this state than that a subsequent agreement which does not form any part of an original contract, nor is supported by the original consideration thereof, nor by any new consideration, is a mere mide pact, of no force or validity. Such is the situation here. Williams v. Williams, 67 Mo. 662; McMahan v. Geiger, 73 Mo. 145; Montgomery Co. v. Auchley, 92 Mo. 126. And the trial court rightly held that, unless Heim accepted the assignment made, by Lau to him of the lease, that no contractual relations in respect to that assignment were created between Lau and Heim in consequence thereof, nor any obligations cast on Heim as the result of such assignment. Nor could Heim, by recognizing himself to be bound by his invalid guaranty, by promising to pay the rent, etc., confer any retrospective validity on the considerationless contract. But the. trial court erred in holding and instructing that, Mrs. Macfarland not being seized of an equitable, separate estate, could have any agent either in Harding or in her husband to bind her by any act of theirs, or [334] that she could ratify their void acts. A void act is incapable of ratification. It is impossible to understand what is.meant by the words “general estate,” of which it is said Mrs. Macfarland was seized. It suffices for the present purpose that it is stated in the record that it was not her “equitable, separate estate.” It is among the fundamentals of the common law that a married woman is incapable of contracting, and her supposed contracts are void. This is still the law, except where statutory modifications have occurred. If thus incapable of contracting, then incapable, also, of authorizing another to contract for her; for this would be to make the stream rise higher than its fountain head. Story says: “* * * Every person, therefore, of full age, and not otherwise disabled, has a complete capacity for this purpose. • But infants, married women, idiots, lunatics, and other persons not sui juris', are either wholly or partially incapable of appointing an agent. Idiots, lunatics and other persons not sui juris, are wholly incapable; and infants and married women are incapable, except under special circumstances. * * * So in regard to married women, ordinarily, they are incapable of appointing an agent or attorney. * * * With regard to her separate property, she may, perhaps, be entitled to dispose of it, or to encumber it, through an agent or attorney; because in relation to such separate property she is generally treated asa feme sole. I say, ‘perhaps,’ for it may admit of question; and there do not seem to be any satisfactory authorities directly on the point.” Story on Agency [9 Ed.], sec. 6. A similar doubt has been elsewhere intimated. Weisbrod v. Railroad, 18 Wis. loc. cit. 40, and cases cited. In this state, however, it has long been steadily maintained that a feme covert, as to her separate estate [335] in equity, is a feme sole. (Turner v. Shaw, 96 Mo. loo. cit. 28, and eases cited.) and, therefore, may charge her separate estate, make an agent in regard thereto to' all intents and purposes as if she had never passed sub jugum matrimonii. But where she is not thus seized, we have held, over and over again, that, not being sui juris, of course she could not appoint an agent. Wilcox v. Todd, 64 Mo. 388; Hall v. Callahan, 66 Mo. 316; Silvey v. Summer, 61 Mo. 253; Henry v. Sneed, 99 Mo. 407; Flesh v. Lindsay, 115 Mo. 1; Mueller v. Kaessmann, 84 Mo. 318. Counsel for defendant, however, make citation of Mead v. Spalding, 94 Mo. loc. cit. 48, as asserting a contrary doctrine, and so it does, for- it is there broadly asserted that, “There can be no doubt but the husband may be the agent of the wife.” The two cases cited from our own reports do not sustain that position, because the first one was one where the land of the wife, the proceeds of which she brought suit for, was “her sole and separate property.” Eystra v. Capelle, 61 Mo. 578. The second one cited is Rodgers v. Bank, 69 Mo. 560, where the subject of the suit was the wife’s money, acquired by her under the Married Woman’s Act of 1875, section 3296. But that section authorizes the wife to appoint her husband as her agent for the disposition of her personal property, provided the authority be in writing, and we have expressly held that, in regard to that section, a married woman, respecting her personal property, held under its provisions, is a feme sole. Blair v. Railroad, 89 Mo. loc. cit. 391. We, therefore, decline to follow the ruling in Mead v. Spalding. On account of the reasons expressed in a prior part of this opinion, the error mentioned is a harmless one, and, when this'.is the case, such error in giving erroneous instructions constitutes no ground for reversal. Fits [336] gerald v. Barker, 96 Mo. loc. cit. 666; Brobst v. Brock, 10 Wall. 519. Therefore the judgment is affirmed. All concur.