Dobbins v. Thomas, No. 1540

No. 1540 | D.C. Cir. | Nov 8, 1905

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. It is questionable if the plaintiff’s supporting affidavit was itself sufficient to entitle him to the judgment entered. The declaration does not set out a contract of sale and express promise to pay the prices claimed for the articles in the bill of particulars, but consists of the ordinary common counts for goods sold and received, etc. The affidavit, on the other hand, sets up a specific contract of sale at agreed prices, and does not attempt to support the common counts. This question was not raised on the trial, and we nee'd not decide it, because the judgment must be reversed on another ground, and it may not again recur.

2. It is the well-settled construction of the 73d rule that, while the affidavit of the plaintiff, which would deprive the defendant of his right to trial by jury, is to be construed with some strictness, that of the defendant must be accorded a fairly liberal interpretation. Bailey v. District of Columbia, 4 App. D. C. 356, 370; Lawrence v. Hammond, 4 App. D. C. 467, 474; St. Clair v. Conlon, 12 App. D. C. 161, 163; Strauss v. Hehsey, 7 App. D. C. 289, 294, 36 L. R. A. 92. As was said by Chief Justice Alvey in the case last cited: “The court cannot question or traverse the truth of the facts stated in the defendant’s affidavit. Those facts the court is bound, for the purposes of securing to the defendant the right of trial, to assume as true, and that, too, without reference to what the plaintiff may have stated in his affidavit. If the facts stated by the defendant, by any reasonable or fair construction, will constitute a defense to the action or claim of the plaintiff within the scope of the pleas pleaded, it is the absolute constitutional right of the defendant to have that defense regularly tried and determined in due course of judicial investigation. No rule, however beneficial it may be thought to be as means of preventing the use of sham or feigned defenses, or desirable for the expedition of business, can deprive the defendant of this right.” All that is required is that the facts alleged shall be sufficient to indicate a substantial legal defense made in good faith. Cropley v. Vogeler, 2 App. D. C. 28, 32; Pumphrey v. Bogan, 8 App. D. C. 449, 451; St. Clair v. Conlon, 12 App. D. C. 161, 163; Magruder v. Schley, 17 App.. D. C. 227, 231; Brown v. Ohio Nat. Bank, 18 App. D. C. 598, 606; Consumers’ Brewing Co. v. Tobin, 19 App. D. C. 353, 356.

Tested by the foregoing principles, the defendant’s affidavit contains a sufficiently distinct denial of the contract set up in the plaintiff’s affidavit to entitle her to a trial of the issues in regular course, and the court erred in entering the judgment on the motion of the plaintiff.

3. The contention upon which the appellant apparently rested her case in the court below, and which has been chiefly relied on in the argument, is that, being a married woman at the time of the alleged contract, she cannot be held liable thereon.

Section 1151 of the Code [31 Stat. at L. 1373, chap. 854] declares that all the property belonging to a woman at the time of her marriage, and all that she may acquire thereafter by purchase, gift, grant, devise, bequest, descent, in the course of distribution, by her own skill, labor, or personal exertions, or as proceeds of a judgment at law, or a decree in equity, or in any other manner, shall be her own property as absolutely as if she were unmarried, shall be protected from the debts of the husband, and shall not in any way be liable for the payment thereof: Provided, that no acquisition passing from the husband shall be valid if made or granted in prejudice of the rights of his subsisting creditors.

IJpon the face of the record, the property received by the plaintiff from the defendant belonged absolutely to her, and that delivered by him to her in exchange became her property also.

Section 1155 [31 Stat. at L. 1374, chap. 854] confers upon married women the power to engage in business, to make contracts ; and provides that they may sue and be sued separately thereon as if they were unmarried. In case of judgments against them, execution may issue as if they were unmarried. And the husband is exempted from liability upon any contract made by his wife in her own name and upon her own responsibility. Section 1156 [31 Stat. at L. 1374, chap. 854] provides that “every contract made by a married woman, which she has the power to make, shall be deemed to be made with reference to her estate which is made her separate estate by this chapter, and also her equitable separate estate, if any she has, as a source of credit to the extent of her power over the same, unless the contrary intent is expressed in the contract.”

The contract alleged was one clearly within the power of the defendant, though a married woman, to make. It must be deemed to have been made with reference to her separate estate, there being no contrary intent expressed. She is therefore liable to be sued separately thereon, and, in case of judgment against her, to have execution issue as if she were unmarried.

Notwithstanding these conclusions, it is further contended on behalf of the appellant that she is relieved from liability on the contract in question by the provisions of section 1177, which reads as follows: “Nothing in this chapter shall be construed to relieve the husband from liability for the debts, contracts, or engagements which the wife may incur or enter into upon the credit of her husband, or as his agent, or for necessaries for herself, or for his or their children; but, as to all such cases, his liability shall be or continue as at common law.” [31 Stat. at L. 1377, chap. 854.]

The court was right in denying this contention. There is nothing to indicate that the contract was entered into upon the credit of the husband, or as his agent; indeed, the wife has denied entering into any contract at all. Nor was it made affirmatively to appear that the items of personal property claimed to have been sold and delivered to the wife were necessaries for herself, or for his or their children. But sh'e cannot relieve herself of liability by hereafter showing that the articles were in fact necessaries. Section 1177 [31 Stat. at L. 1377, chap. 854] does not undertake to provide that she shall not render herself liable for necessaries when contracted for independently of her husband and with reference to her separate estate, but merely that, in such cases, the husband shall not be relieved of any liability therefor that he may be under by virtue of the common law.

It does not substitute the common-law liability of the husband for that of the wife, but retains it as an additional security for the benefit of the other contracting party.

For the error committed as hereinabove pointed out, in respect to the general sufficiency of the defendant’s affidavit, the judgment will be reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered. Reversed.