103 Wash. 612 | Wash. | 1918
— This action was instituted to recover upon a promissory note. In the complaint it is alleged
The respondents answered, putting in issue by a general denial all of the allegations of the complaint, save and except the allegation that the respondents were husband and wife. Por a further and separate answer they alleged that, on April 26, 1916, the respondent wife entered into a conditional sale agreement with the appellant for a Victor Player piano, at the agreed price of $600; that the agreement was entered into on her own account, she agreeing to pay for the same out of her own separate property, and not for or on behalf of the community composed of herself and her husband; that the respondent J. C. Woodard expressly refused to purchase the piano or to in any way become liable therefor, and refused to permit the same to be purchased for or on account of the community composed of himself and wife; that, if the appellant has a note evidencing the purchase price of the piano signed
The evidence introduced at the trial, which was had before a jury, tended to support in the main the respondents’ version of the transaction. It is not disputed that the husband, when broached to purchase the piano, declined positively to make the purchase; that he did not know for some time after the transaction took place that his wife had entered into a contract for its purchase; that, both before and after that time, he thought the piano was kept in his house in the hope of a sale, and that he ordered the salesman to take it away.' The evidence was sufficient, also, we think, to justify a finding that the wife purchased the piano on her own responsibility, intending to pay for it out of funds she expected to derive from property left her by a deceased brother; that this method of paying for the instrument was talked over between herself and the salesman, and that the salesman himself understood that it was from funds so derived that the purchase price of the piano would ultimately be paid. The wife denies her signature to the note, and while a comparison of the signature thereto with her admitted signatures casts a doubt upon her statement, there is testimony in the record tending to show that she signed the note without knowledge of its purport. There is no question, however, that she signed the contract and thus obligated herself to pay for the piano,
It is the appellant’s first contention that the obligation sued upon is a family expense chargeable upon the property of both husband and wife, and that the court erred in refusing to so charge the jury, and in refusing to grant his motion for a judgment notwithstanding the verdict. The contention is founded upon § 5931 of Bern. Code, which reads:
“The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may lie sued jointly or separately.”
This section was enacted by the territorial legislature of 1881, and first appears in our official publications in the code of that year as a part of ch. 183. An examination of the chapter cited will show that the section is a part of a general act relating to the rights of married persons, and contains many other provisions on the same subject-matter with which this section must he read and construed. Among other things, it is provided that neither the husband nor the wife is liable for the separate debts of the other, and that contracts may he made by the wife and liabilities incurred by her which may he enforced against her to the same extent and in the same manner as if she were unmarried. The act also defined what should constitute community property of husband and wife, and gave the husband the management and control of the community personal property, with a like power of disposition as he has of his own separate property, except that he was not permitted to devise by will more
It is true also the court refused to submit to the jury as a question of fact whether or not the obligation incurred in the purchase of the piano was a family expense, and that error is assigned thereon. But we find no error in this. In our opinion, the question in the particular case, because of the nature of the evidence, was one of law, not a question upon which opinions might reasonably differ. The court did charge the jury that, if they found that the husband had in any way ratified the purchase, they might find the community liable. This was as favorable to the appellant as the facts warranted.
We have not overlooked the citations from other jurisdictions holding that an obligation incurred by the purchase of a piano is a family expense when the piano is retained and kept for use by the family, and, under statutes containing provisions similar to our own, is chargeable to the property of both husband and wife. But an examination of the cases will show that they are from states where the property of married persons is not held under a tenure like our own, that is, states where the community doctrine of ownership does not obtain. Nor does any of them present the fact of a purchase by the wife over the protest and objection of the husband.
The court gave to the jury the further instruction:
“Should you find from the evidence that the defendant M. V. Woodard did not execute the note set forth in plaintiff’s complaint herein, it will be your duty to return a verdict in favor of both defendants herein.”
Doubtless the court based the instruction upon the fact that the complaint declared upon a note, and gave the instruction upon the theory that a failure to prove the execution of the note was a failure of proof war
The judgment is reversed as to the respondent M. V. Woodard, and the cause remanded with instruction to enter a judgment against her according to the terms of the contract of purchase, the judgment to be executed upon her separate property. In other respects, the judgment will stand affirmed.
Main, O. J., Mitchell, Tolman, and Parker, JJ., concur.