51 Ind. 294 | Ind. | 1875
Suit by the appellees against the appel
There was a second paragraph of the complaint, but it was-adjudged bad on demurrer, and no question arises as to that ruling. The paragraph which we have set forth was held sufficient, on demurrer thereto by Mary A. Crickmore, and to that ruling thefip was an exception.
Mary A. Crickmore then answered separately by a general denial of the first paragraph of the complaint. Upon a trial by a jury, there was a verdict for the plaintiffs. A motion for a new trial by the female defendant was made, and overruled, and there was final judgment, ordering a sale of the property for the payment of the amount of the verdict and the costs. Two errors are assigned:
1. Overruling the demurrer to the first paragraph of the complaint.
2. Refusing to grant a new trial.
An objection urged against the complaint is, that it does-not sufficiently show that the wife charged her separate property with the payment of the indebtedness. This question has often been before this court since the enactment of the statute on the subject of the separate property of married women. In the following cases the subject was under consideration :
These cases indicate an inclination on the part of the court to require cases to be brought clearly within the rule of liability laid down. In Black v. Rogers, supra, it was held that the party asserting such a claim must specially set forth in his complaint all the facts necessary to show its validity.
The cases that we have cited recognize and apply the rule, substantially, which, according to the authorities cited in the first named case, appears to have prevailed in equity, relating to the power of the wife over her separate property.
In the case under consideration, the question is discussed as to the power of a married woman to appoint an agent, and as to the right, in such case, to sue an undisclosed principal when discovered; but we do not deem it necessary to decide these questions.
Conceding, without deciding, that the female appellant might appoint an agent, still we think the complaint is insufficient, for the reason that it does not show that she, either in person or by agent, so contracted with reference to her separate property as to make the same liable for the alleged indebtedness.
Ve are of the opinion that the demurrer to the complaint should have been sustained.
Although it may be unnecessary, we will examine the question made upon one of the instructions given, presenting the case with reference to another of its features.
Instruction number two, given by the court at the instance of the plaintiffs, is as follows:
“ If the jury find from the evidence, or preponderance of the evidence, that, on the 10th day of June, 1872, the defend*298 ant Mary A. Crickmore was the owner of the lot mentioned in the complaint as her sole and separate property, and that at that time she was the wife of her co-defendant, Charles B. Crickmore, and that said lot was a suitable one for dwelling purposes, and unsuitable for any other use, and that it was vacant, or had the ruins of a building which had been destroyed by fire upon it, that she and her husband, and neither of them, had or owned no dwelling-house suitable to live in, and that it was at that time necessary to a full and complete enjoyment of said lot by her that a dwelling-house should be constructed thereon, and that she, on that day or prior thereto, while she owned said lot, constituted her husband, Charles B. Crickmore, her agent to purchase materials for the construction of a dwelling-house upon said lot, and to employ mechanics and laborers to build and construct the same for her and in her stead, and that said Charles B. Crickmore, in pursuance of said agency, purchased of the plaintiffs material, etc., mentioned in the complaint, and hired them as mechanics to put the same upon said building in roofing and eave-troughs, spouting, etc., for the same, and that they,- in pursuance of said purchase, furnished material for roofing, eave-troughs, spouting, etc., for said house, expended labor putting the same on, and that said roofing, eave-troughs, spouting and other material furnished under said purchase by the plaintiffs for said house were suitable for such a house as was being constructed, and necessary to its proper completion, the plaintiffs would be entitled to recover for the reasonable price or value of said material furnished and the labor expended by them in putting it on said building. ”
The substance of this charge is, that if the building of a dwelling-house on the lot was necessary and proper to its use and enjoyment by the owner, and if the plaintiffs furnished the materials for, and did the work on, the house that was built, and they were suitable for such a house as was built and necessary to its completion, the plaintiffs could recover.
The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to sustain the demurrer to the complaint.