D. Wolff & Co. v. Lozier

The opinion of the court was delivered by Fort, J. This was an action of tort brought in the Orange District Court against Ike Lozier and Ida Lozier, his wife. The tort is alleged to have arisen out of the refusal of the defendants to deliver certain articles of wearing apparel purchased of the plaintiffs by Ida Lozier, the wife, under a contract, upon condition that the property purchased should remain the property of the plaintiffs until paid for. The form of the contract, as taken from the brief of the plaintiff’s counsel, and the facts found by the judge of the District Court, as certified under a rule of this court, are set out at the head of 'this opinion. Under the facts returned there is no justification for the judgment returned against Ike Lozier, the prosecutor in this case. He did not purchase the articles. He did not contract to return them nor was ho in any way, so far as the evidence shows, a party to any contract for the breach of which an action of trover (if such a thing be possible) would in any case lie against him. Nor is there proof that the articles sold under the contract to Ida Lozier, his wife, came into his possession or under his control, or that he had the property in his possession at the time demand for its delivery was made upon him, or that it had ever been in his possession or under his control prior to that- date. In that state of the proof, no action for trover for unlawful conversion of the property will lie against him. This is so elementary that a citation of authorities seems unnecessary. It was attempted to justify the judgment in this case against the prosecutor upon the ground that his wife, Ida Lozier, had purchased the articles of wearing apparel in question under a written contract (like the form above) and that the articles had been delivered to her upon the conditions [107] therein mentioned, and that upon her failure to return, upon the breach thereof and after demand, she was guilty of a tortious act and that her husband, the prosecutor, was liable for the tort of his wife by the well-established rules of the common law. This contention, we think, is without legal support. The torts of a wife for which a husband was liable at common law were not such as arose out of a refusal to return property held under her contract, for the very good reason that she could not make such a contract. By the common law, the husband and wife were one. She could hold no personal property. Her property was his, and, if he would be liable in trover for property delivered to his wife, it would be because, though delivered to her, it was nevertheless his. All this is changed by our statutes permitting a married woman to contract and hold real and personal property as if a feme sole. Gen. Stat., p. 2017, § 26. If it had been possible to have maintained trover at common law against a husband in a case like this, it would have been for the reason that unity in law existed during the marital state. But when the reason goes the rule goes also. Neither would therefore exist any longer with us. McBlain v. Edgar, 36 Vroom 634. But it is doubtful if, for torts of this character, a husband could have been held even at common law. The torts or frauds for which a husband was liable at common law were such as were torts simpliciter, or cases of pure, simple tort, and not where the substantive basis of the tort is the contract of the wife. Woodward v. Barnes, 46 Vt. 332; 8. C., 14 Am. Rep. 626; Keen v. Hartman, 48 Pa. St. 497. A wife alone is liable for her torts when committed in the management and control of her separate property since the statutes relating to married women. Baum v. Mullen, 47 N. Y. 577. The judgment in this ease against the husband, the prosecutor, is reversed.