Eskridge v. Ditmars

Jun 15, 1874

Reporters:
Before:: Brickell

BRICKELL, J.

—The statute subjects the wife’s separate statutory estate to liability “ for all contracts for articles of comfort and support of the household, suitable to the degree and’condition’in-life of the family, and for which the husband would be responsible at common law; ” to be enforced by ac*250tion at law against the husband alone, or against the husband and wife jointly. R. C. § 2376. The construction heretofore placed on this statute is, that the remedy prescribed is to be deemed statutory, and must be strictly pursued. If the wife die, her personal representative is not subject to the suit at law. Rogers v. Brazeale, 34 Ala. 512. If the husband die, a suit at law against the wife surviving cannot be maintained. Carter v. Ulman, 45 Ala. 343. This construction materially impaired the right of the creditor, who had, on the faith of the wife’s separate statutory estate, supplied the family with necessaries. Cases were of frequent occurrence, in which one of the parties, husband or wife, was amenable to the process of our courts, while the other was absent from the State, and could not be reached. In such cases, a joint suit was not possible, and the result was an exemption of the wife’s estate from the liability the statute imposed. To remedy this deficiency in the law, the act of April 23, 1873 (Pamph. Acts 1872-3, p. 113), was passed. It provides that, if husband and wife, or either of them, reside out of the State, to such suits they can be made parties by publication. ‘This act is remedial — it neither diminishes nor enlai’ges an existing right, but furnishes a remedy adequate to the enforcement of such right, — a remedy without ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍which, in the prescribed cases, the right itself would be embarrassed, if it is not wholly remediless. Courts, on the plainest considerations of justice, are averse to the retroactive operation of statutes, and confine them to cases arising after their passage, unless the words of the statute, or a clear legislative intent deducible from them, compels an application to the past as well as the future. This doctrine has not, however, been extended to merely remedial statutes, which impair no contract or vested right, and do not disturb past transactions, but preserve and enforce the right, and heal defects in existing laws prescribing remedies. ’ 1 Kent Com. 455. Such statutes are, when broad enough in terms, in furtherance of the remedy, applied to suits pending at their passage. Cooley’s Cons. Lim. 381. The circuit court properly applied the act of April 23, 1873, to these cases, in which suits had been commenced prior to its passage, and the plaintiff was delayed in their prosecution by reason of the husband’s non-residence. Thereby no right bf the defendants was prejudiced — no meritorious defence, of which the case was capable, was affected, but the remedy for a clear legal right was advanced.

2. The first count in the complaint is an ordinary count against the defendants, not describing them as husband and wife, as the drawers of a bill of exchange. The third count is for goods sold, and is intended to present a case within the statute, for a personal judgment against the husband, and a judg*251ment of condemnation against the wife’s statutory separate estate. A demurrer to the first and third counts, because of misjoinder, was overruled. The common-law rule is, that when causes of action accrue to the plaintiff in the same right, are of the same nature, and the same plea can be pleaded to, and the same judgment given on several counts setting out each cause of action, they may be joined. 1 Tidd’s Pract. 10; 1 Chitty’s Pl. 199. Únder this rule, the joinder often depended rather on the form, than the subject-matter of the action. Thus, a count in debt on a bill single, or bond for the unconditional payment of money, could be joined with a count on a promissory note, or other simple contract; because debt would lie for each cause of action, the general issue to a count on either was the same, and the judgment to be rendered was the same in form. A count in assumpsit on a bill single, or other specialty, and a count on a promissory note, could not be joined ; because that form of action was maintainable only for the breach of parol or simple contracts, and not for the breach of contracts under seal. The statute (B. C. § 2687) declares, “ All actions on contracts, express or implied, for the payment of money, whether under seal or not, may be united in the same action.” The intention was to do away with the common-law rule, as to the joinder of causes of action on contracts for the payment of money; no longer making the test, the inquiry whether the same plea could be pleaded, and the same judgment in form rendered; or whether the form of action adopted was the proper form for the breach of each contract; but, whether they were contracts for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the payment of money accruing to the plaintiff, from the defendant, in the same right. If they are such contracts, they can be joined in the different counts in the same complaint; and the judgment will be framed, if necessary, to meet the necessities of the case. Each of the counts was framed on a contract for the payment of money, due to the plaintiff in his own individual right, and from the defendants individually; and they were, therefore, properly joined under the statute. The form of judgment on each may not be the same, but the statute removes that objection to the joinder.

3. The demurrer to the third count seems unfounded in point of fact, the count containing the averments, the supposed omission of which is assigned as causes of demurrer.

4. To the first count of the complaint, the defendant Margaret E. Eskridge pleaded her coverture. To this plea, the plaintiff replied, admitting the truth of the plea, but setting up facts which would under the statute charge her statutory separate estate. To this replication the defendant demurred, but the court overruled the demurrer. A replication cannot *252cure defects in a declaration. The plaintiff cannot make a replication serve the purposes of an amendment to the declaration. When at common law his cause of action is stated generally, and may embrace either of two kindred transactions, by a new assignment, he could apply his declaration to one of these transactions only. Thus, if the plaintiff had made two separate sales of goods to the defendant, and declared against him generally for goods sold and delivered, and the defendant pleaded a plea, applicable to one, but not to the other of the sales, on which the plaintiff’s action was brought, the plaintiff might new assign that his action is not brought for the goods sold on the sale to which the plea applies, but for other goods sold and delivered. 1 Chitty’s Pl. 624. If, however, the plaintiff’s count was capable of application to a single transaction, or a single contract only, he could not, by new assignment, extend it to another. 1 Chitty’s Pl. supra. The first count is on a bill of exchange; the plea is coverture; the replication proposes to answer the plea, by setting out the consideration of the bill, and averments showing such consideration was a charge on the wife’s statutory separate estate. The count on the bill is special; the plea is applicable to, and, for the wife, a full answer to this count; the replication confesses the plea, but proposes to avoid it, by departing from the count, substituting a new cause of action variant from that specified in the count, and which could not under it have been received in evidence. The replication was vicious ; the demurrer to it was well taken, and should have been sustained.

5. The bill of exchange was proper evidence against the husband, and appears to have been read in evidence against him only. In this there was no error. If the wife apprehended that thereby she could be prejudiced, on request the court would have given U charge, limiting its operation to the husband only. Goodman & Mitchell v. Walker, 30 Ala. 482.

6. The claim of the appellees Ditmars & Co. is an account for household furniture sold and delivered to the husband, suitable to the degree- and condition in life of the family. The clai m of the appellee Gill is an ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍account for -a carriage sold and delivered the husband. The evidence is, that the degree and condition in life of the family, justified them in having a carriage. The court, in each case, in effect charged the jury, that if they believed the evidence, the statutory separate estate of the wife was liable for the value 6f the furniture and carriage. The correctness of the charge, as to the account for the furniture, we cannot doubt. We have had more difficulty in reference to the account fot the carriage. In the carefully considered case of Durden & Wife v. McWilliams & Smith (31 Ala. 438), this court for the first time defined *253“ the contracts, or what description of- articles of family supply, or of comfort and support of the. household, can become a charge ” upon the wife’s statutory estate; and declared the intention of the legislature to be, to render it liable for necessaries in the common-law acceptation of that term ; such necessaries as, in the absence of a proper provision by the husband, a stranger could supply to the wife, and charge the husband in invitum. No other construction will give effect to all the terms of the statute, and preserve the intention of the legislature in its enactment.

At common law, marriage in a great degree was a merger of the civil existence of the wife in that of the husband. She became incapable of contracting, or of acquiring, holding, or disposing of property. Therefore, on the husband devolved the duty of maintaining the wife. From this duty, arises his liability for necessaries furnished her. The liability is raised by the law, only to compel the performance of the duty. It is not intended to infringe upon the authority, or the discretion, properly permitted the husband, to control his domestic affairs. The liability is for necessaries. This term does not seem to have received, or to be capable of a very exact definition. In its general signification, it embraces food, raiment, medicines, medical assistance, and habitation, comporting with the social position of husband and wife, and with the fortune of the husband. Beside these, we sometimes find it declared, that such other articles as are in keeping with the degree in life, and the fortune of the husband, such articles as a prudent husband would ordinarily furnish the wife, and as she could reasonably expect to be allowed her, are to be reckoned as necessaries. The term is used, at common law, as. fixing the extent of the implied authority of the wife by her contracts to bind her husband ; and as fixing the limit of the liability of a husband, who has not made proper provision for the wife, to a stranger supplying her wants. The signification of the term does not seem to be varied, whether applied to the one case or the other. When the limit of - necessaries is passed, the authority implied, or the liability raised by law, terminates. The term is relative, and most often what are necessaries is a question of fact for the jury, rather than a question of law. Food, raiment, habitation, of a quality suited to the degree and condition in life of one wife, could not be allowed another, without subjecting the husband to a liability for the extravagance of the wife. In each case, the husband is bound to maintain the wife; the law compels him to furnish her with food, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍raiment, and habitation ; but the quality of these must be measured by his ability to pay for them. When these are supplied, the legal duty of the husband is performed; the power of the *254law to fix upon him an involuntary liability is exhausted. Beyond this, the law cannot pass, without invading his authority and discretion in the management of his household. His social position may enjoin it as a duty, so long as the wife does not violate her duty, and they live together, to supply her with other articles, in keeping with his fortune. This duty the law cannot compel him to discharge. It must be left to his volition. A carriage is to be esteemed rather as a luxury, than as a necessary. Whatever may be the social position and fortune of the husband, we cannot believe the common law would have compelled him, because he had not provided the wife with a carriage, to pay for one furnished her by a stranger ; or that authority to the wife to purchase it would have been implied by that law. If such was the law, there would be no limit to his liability for the purchases of the wife, so long as the thing purchased was suited to her social condition and his fortune. Within that line, he would be shorn of all authority and discretion, in the regulation of his domestic expenditures, for his failure to provide would be a letter of credit to the wife, and of authority to the vendor.

In the enactment of the statutes creating the separate estates of married women, the interests and convenience of the wife are not alone consulted or regarded. It was not intended only to save the estate from the ownership of the husband, and vest it in the wife. The purpose was to create a trust estate, of which the children of the marriage are, if not technically, yet in fact, with the wife, beneficiaries, and to preserve it from the dominion of husband or wife, as a means of support to the wife and children. In furtherance of this purpose, the husband takes the income, as trustee, freed from liability to account. The income is not a gift to the husband. He takes it as trustee, as the head of the famity, to be applied to the comfortable support of the wife and children. Pie is exempt from liability to account, because such liability would be an invasion of his authority as husband to regulate and control his domestic affairs, and would provoke litigation ’ that would mar and destroy the peace of the family. On this separate estate, a narrow, limited liability is fixed by law — it is exempt from the satisfaction of any and all debts, whether contracted by husband or wife, other than debts “ for articles of comfort and support of the household.” A liability for these is fastened on the estate, without regard to the ability of the husband when they are purchased to pay for them, and without regard to whether credit for them was or not extended to the husband only. Sharp & Wife v. Burns, 35 Ala. 653. The limited liability thus imposed on the estate, indicates the intention of the legislature to guard it from waste, by the extravagance of *255husband or wife. “ Comfort,” and “ support,” when used in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the connection in which they are found in the statute, have the same meaning, and are synonymous with maintenance. Terms more expressive of the narrowest signification of necessaries at common law, could not have been adopted. When the household are supplied with food, raiment, habitation, medical assistance, and medicines, the boundary prescribed by tbe statute is reached. These must be graduated to the degree of tbe wife’s fortune, and her social position. Whatever is beyond, these, however suitable to tbe social position of tbe family, and tbe value and extent of tbe separate estate, must be supplied from its‘income. Coverture is a disability akin to that of infancy. Tbe separate estate of a married woman is guarded with the same vigilance with wbicli the estate of an infant is guarded. A court of equity never permits the principal or capital of an infant to be broken in upon, except for maintenance and education. These are not, in all cases, the limit of nesessaries, for which an infant may contract, or wliicb may properly be supplied by a guardian. It is tbe limit to which the court will go, in allowing the principal of the infant’s fortune to be expended. The same .rule must obtain, in ascertaining tbe liability of the corpus of tbe wife’s statutory separate estate. Tbe adoption of any other rule would open tbe door for waste and extravagance, which would often consume the estate, and defeat the purposes of its creation.

Tlie judgment in tbe case of Ditmars & Co. is reversed, for the error in overruling tbe demurrer to the replication, and in tbe case of Gill, for tbe same error, and tbe error in tbe charge of tbe court, and tbe causes are remanded.