| Ala. | Nov 15, 1899
The only question presented in brief of counsel for appellant, defendant below, was the sustaining of the demurrer to the pleas of defendant -to the third-and fourth amended counts in the complaint.
The plea of defendant went to the third and fourth counts together. TLe third was for work and labor done for defendant by plaintiff as an attorney, and the fourth, for services rendered by plaintiff for defendantt as attorney in bringing suits for -her, under a contract with her for such service. The plea was “that at the time the alleged services were rendered, defendant was and 'is now a married woman, 'the wife of Sam Cowan, and did not have the written assent or concurrence of her said husband to the contract with plaintiff, or to make the alleged contract sued on.”
The first ground of demurrer was: “Said plea is no answer to the third and fourth counts of the complaint.” Nothing could be more general than this objection. The second was: “Said plea does not set out such facts as constitute a traverse or a confession and avoidance of the facts stated in the third and fourth counts of said, complaint.” This, also, is a mere general objection to the plea without pointing out distinctly the ground of objection. The plea may be defective, but the ground of demurrer carefully fails to point out in what the defect consists; The reason for requiring by statute the causes of demurrer to be distinctly shown is that defects in pleading may be so distinctly pointed out as that the party pleading may be apprised of their existence, and have opportunity to cure them by amendment if he can. Sledge v. Swift, 53 Ala. 110" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/sledge-v-swift-murphy--co-6509102?utm_source=webapp" opinion_id="6509102">53 Ala. 110; Moore v. Heincke, 119 Ala. 631. The third 'and only other ground is that “Said counts show on their face, that the claims sued for was for fees incurred {by defendaant to plaintiff as an attorney in suits about her separate estate, 'and were such contracts as she had the right to make and bind herself” (for).' A sufficient reply to this ground of demurrer is that there was no exception in the statute referred to, authorizing a married woman to make a contract with a third person, such as is described in the complaint, with
It is urged, however, that as a married wornan wras then (as now) required to sue alone on all contracts made by or with her, she was authorized as a matter of necessity to incur the incidentaal obligations of so doing. This was true under the former statute, as to all such liabilities as wrere cast on her by lawr, such as the pay-, ment of costs.- — Askew v. Renfro, 81 Ala. 360" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/askew-v-renfroe-6512675?utm_source=webapp" opinion_id="6512675">81 Ala. 360. This liability proceeded on the principle that she could not reap the benefits of litigation she was authorized to institute, without incurring its burdens. But, an attorney’s fee wras not an incidental obligation to litigation that the law cast upon her. It was a matter of negotiation and contract, like any other lawful subject of an agreement with her, one as to wdiich the law presumed .she needed the counsel and concurrence of her husband before making, as any other she might make.
The demurrer to the pleas should, for the reasons stated, have been overruled.
Reversed and remanded.