12 N.Y. 604 | NY | 1863
As this action was commenced in 1857, it muss be determined by the rules of the common law, irrespective of the alterations made by our recent statutes in the laws affecting husband and wife.
It cannot be said that the husband of the defendant was ever liable ex contractu to pay for the goods. They were not necessaries, and there is no allegation in the complaint that he knew of the purchase of the goods by his wife, or that they ever came to his possession.
There was, therefore, no implied promise on the part of the husband to pay for the goods. Story says: “ If credit be given solely to the wife, the husband is not liable, although they live together, and although he see her in possession of the goods bought. If, therefore, the tradesman should take her promis
But the vendors could have maintained an action against the defendant and her husband jointly in the lifetime of the latter to recover possession of the goods, or for a conversion thereof by the former, on the ground that the goods were fraudulently obtained by the wife by falsely holding herself out to be unmarried and doing business as a trader in her own name and for her own personal benefit and advantage; and I will not say but an action on the case for damages for the fraud would have lain against the husband and wife jointly. Kent says: “ The husband is liable for the torts and frauds of the wife, committed during coverture. If committed in his company or by his order, he alone is liable. If not they are jointly liable, and the wife must be joined with the husband." (2 Kent’s Com., 9th ed., 138; 2 Bright. on Husband and Wife, 79, 80; 1 Story on Con., 4th ed., § 109; Reeve’s Dom. Rel., 2d ed., 72, 73.) By reason of the fraud of the wife the title to the goods remained in the vendors, and the possession or conversion thereof by the wife was wrongful. (Cary v. Hotailing, 1 Hill, 311; Nichols v. Michael, 23 N. Y., 264.) Hence the right of the vendors to maintain either of the actions formerly called replevin and trover for the goods.
When the wife commits a tort by order of her husband, or in company with him, he alone is liable; and in case of his death, the cause of action does not survive against the wife. (Reeve’s Dom. Rel., 2d ed., 72.) But if the tort be not committed in the presence of the husband, or by his order or request, the wife is also liable and must be joined in the suit with her husband. The wrong is in such a case considered as her wrong, and the husband is answerable with the wife, for a similar reason to that of his liability for her contracts before marriage. (Reeve’s Dom. Rel., 2d ed., 72.) I am of the opinion, a cause of action for such a wrong survives against the wife on the death of her husband.
The only authority I have found, which seems to militate against any of the foregoing conclusions, is the decision of the Court of Exchequer in Fairhurst & Wife v. The Liverpool Adelphi Loan Association (26 Eng. Law and Eq., 393), where it was held that an action will not lie against á husband and wife, for a false and fraudulent representation by the wife to the plaintiffs, that she was sole and unmarried, at the time of her signing a promissory note as surety to them for a third person, whereby they were induced to advance a sum of money to that person. The opinion of Judge Reeve is to the contrary. (Reeve’s Dom. Rel., 2d ed., 72, 73.) But if the decision of the Court of Exchequer be correct, it is placed on the same ground
If these views are correct, the promise of the defendant after the death of her husband to pay for the goods, and to pay the notes given for them, was an undertaking by her to pay, a demand for which a cause of action existed against her, -from the time she purchased the goods, and therefore was founded on a good and sufficient consideration, and is clearly obligatory upon her.
There is another view of the case which shows the promise ■ of the defendant to pay for the goods and pay the notes she gave therefor, was founded upon a sufficient consideration. .
I am aware the general rule is that a moral obligation is not alone a sufficient legal consideration to support a promise. (1 Story on Cont., 4th ed., §§ 465-469; Chitty on Cont., 9th Am. ed., pp. 48, 49; 24 Wend., 97; 1 Hill, 532; 5 id., 306.) And the Superior Court of New York City went so far in Watkins v. Halstead (2 Sand. S. C., 311), which case was followed by the Supreme Court in 1^his, as to adopt the language of a note to Wennall v. Adney (3 Bos. & Pul., 252), where it was.said that
In Lee v. Muggeridge (5 Taunt., 35), a feme covert, having an estate settled to her separate use, gave a bond for repayment, by her executors, of money advanced at her request, on security of that bond, to her son-in-law; and after her husband’s decease, she' wrote, promising that her executors should settle the bond, and it was held that assumpsit would lie against the executors on such promise of the testatrix. That case was not .overruled by the decision in Meyer v. Haworth (8 Adol. & Ellis, 467); though it must be conceded it was very much weakened as an authority in England, by Eastwood v. Kenyon. (11 Adol. & Ellis, 438.) And Littlefield, Executrix, &c., v. Shee (2 Barn. & Adol, 811), was put mainly upon the ground that the price of the goods originally constituted a debt from the husband, though Lord Tenterden in deciding it said he must also observe, “ that the doctrine, that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation.” Lee v. Muggeridge has never been overruled in this State. Smith v. Wane (13 Johns., 257), does not do it; for that, was a case to recover back money the plaintiff had paid the defendant for land, the former claiming there was a deficiency in the number of acres; and Judge Spencer, in delivering the opinion of the court, said: “ It cannot be pretended that the defendant was under any moral obligation to pay for the deficiency in quantity of land sold and conveyed to the plaintiff.” All that was decided in Ehle v. Judson (24 Wend., 97), was that a mere moral or conscientious obligation, unconnected with a prior legal or equitable claim, is not a sufficient consideration to support a promise; and Judge Bronson, who gave the opinion of the - court, said: “ The moral obligation to pay a debt barred by the statute of limitation, or an insolvent’s discharge, or to pay a debt
There are some, perhaps many, broad assertions in our reports going to show that the promise of the defendant in this case is not obligatory; and the reasoning tends that way in the following cases: (Geer and Wife v. Archer, 2 Barb., 420; Nash v. Russell, 5 id., 556; and Ingraham v. Gilbert, 20 id., 151.) But there are equally broad expressions in our reports the other way; and the reasoning in such case's as Doty v. Wilson (14 Johns., 378), and others I might mention, certainly tends to the conclusion that such promise is binding, as, in justice, it clearly ought to be.
The goods were sold and delivered by the vendors with -the expectation on their part, that they would receive pay for the same, and upon the defendant’s express promise that she would pay for them, -and under such circumstances that the vendors had no claim therefor against her husband. The goods were valuable and the defendant personally received the benefit of them; and the price she agreed to pay therefor, is a debt which, “ in equity and conscience,” she ought to pay. In other words, she ought in conimon honesty to pay for the goods. Her promise so to do was made for value actually received by her personally; and it was to discharge a moral obligation founded upon an antecedent valuable consideration, created for her own personal benefit, and at her special instance and request; and I am of the opinion the law makes such promise obligatory upon her.
It seems to me that the defendant’s moral obligation to pay this debt is so interwoven with equities as to furnish a good consideration both upon principle and authority for her promise to pay it. I will add that the fact is controlling with me, that the defendant personally received a valuable consideration for
It is unnecessary to notice any of the recent changes made . by the Legislature in the law, • affecting husband and wife as they are all inapplicable to, the case, which must be determined as the law was when the alleged cause of action accrued.
For the foregoing reasons, I am of the opinion the complaint states facts sufficient to constitute a cause of action, and that the judgment of the Supreme Court should be reversed, and judgment given for the plaintiff on the demurrer with costs; but with liberty to the defendant to apply to the Supreme Court for leave to answer on terms.
A natural or moral obligation is one which cannot be enforced by action, but which is binding on the party who incurs it, in conscience and according to natural justice. (2 Bouv., 200.) And the instance of such an obligation is given, as when the action upon the contract is barred by the statute of limitations, a natural or moral obligation still subsists, although the civil obligation is- extinguished. A natural obligation is a sufficient consideration for a new promise. (5 Binn., 33; 2 id., 591; Yelv., 41, a. n. 1; Cow., 289; 2 Bl. Com., 445; 3 B. & P., 249, n.; 2 East., 506; 3 Taunt, 311; 5 id., 36; Yelv., 41, 6 n.; 3 Pick., 207, and other cases hereinafter referred to.)
The very able note to Wennall v. Adney (3 Bos. & P., 249), contains a review of all the cases, and a criticism upon the decision of Lord Mansfield, and the writer says that the instances adduced by him as illustrative of the rule of law, do not carry that rule beyond what the older authorities seem to recognize as its proper limits, for in each instance the party bound by the promise, had received a benefit previous to the promise.- Indeed, it is' said, it seems that in such instances alone will an express promise have any operation, and there it only becomes necessary because though the consideration was originally beneficial to the party promising, yet inasmuch as
In Bonner v. Hedley (2 Taunt., 184), a promise to pay a void and usurious debt was held binding on the party making it;
Lee v. Muggeridge (5 Taunt., 35), is a case often referred to, and was regarded as a controlling authority until a late period, when its soundness has been in some degree questioned. There a feme covert, having a separate estate, gave a bond for the repayment by her executors of a certain sum of money advanced at her request on the security of that bond to her son-isslasr. After her husband’s decease, „she wrote promising that her executors should settle the bond. It was held that assumpsit would lie against the executors upon the promise of their testatrix. Mansfield, Ch. J., said that it had long been established that where a person is bound morally and conscientiously to pay a debt, though not legally bound, a subsequent promise to pay will give a right of action. And the judges say that the case is not distinguishable from Bonner v. Hedley (supra): that in that case certainly Hedley was never for a moment legally bound to pay a farthing of that money for which he was sued. Bentley v. Morse (14 Johns., 468), is a case similar m principle to Hedley v. Bonner. In that case a debt had been paid and a receipt taken therefor, as evidence of the payment. A suit was brought to recover the same debt, and the receipt not-being produced a recovery was had, and the amount paid the second time. There was, therefore, no legal liability on the- part of the creditor to refund the money, but a moral and conscientious obligation to do so, as he had no claim morally to the money paid the second time. It was held that a promise to repay on production of the receipt, was founded on a good consideration.
The Court says, “ The debt having been paid, the recovery in the former action was clearly unjust. And though in consequence of his neglect the defendant in error lost all legal remedy to recover back his money, yet there was such a moral obligation on the part of the plaintiff in error to refund the
Geer and Wife v. Archer (2 Barb. S. C., 420), was a case when it was held that a mere moral or conscientious obligation, unconnected with a.prior legal or equitable claim, is not sufficient to support an express promise, and the rule as laid down in the note in Bos. & Pull. (supra), is cited as containing the true test.
In the present case, can there be any doubt, but that the defendant, if she had been a single, woman, would have been under both legal and equitable obligation to pay for these goods ? The law would have raised, in that event, an implied promise to pay for them; an express promise therefore, revived a precedent good consideration, which might have been enforced at law through the médium of an implied promise. The inability of the wife to contract, is precisely the same as that of an infant, and cannot be distinguished from it. If a sale and delivery of goods to an infant, imposed a moral obligation upon him to pay for them, it is not perceived why a sale and delivery of goods to a married woman, as in the present case, solely on her credit and responsibility, she being a trader, doing business in her own name, and for her own personal benefit and advantage, and holding herself out as an unmarried woman, does not impose upon her the same moral obligation to pay for them. This case is distinguishable therefore, from those of Littlefield and Shee, and Watkins v. Halstead, in that the debt in the present case, was never that of the husband. The wife here was a sole and separate trader, on
It follows from these views, that the debt referred to in the complaint, under the circumstances therein detailed, was not the debt of the defendant’s husband, but that morally and equitably, she ought to pay the same. That but for the rule of law, prohibiting a feme covert from entering into or making a legal contract, the law would have implied a promise on her part to pay for the same, and that after such disability ceased she having made an express promise to pay the price of such goods, the moral obligation or duty resting on her, to make such payment, formed a good consideration for such promise, and she is consequently liable to pay for the same. ■ The judgment of the Supreme Court should therefore be reversed, and judgment should be given for the plaintiff on the demurrer, with costs.
The action of the plaintiff must, of course, rest •upon the express promise of the defendant, made after her coverture ended, to pay the debts, or the notes which represent them. The question js whether the previous sale and delivery of the goods to the defendant during coverture was a sufficient consideration to sustain the promise. The authorities upon the subject of a promise by a married woman after coverture to pay a debt incurred or an obligation given by her during coverture are not uniform either in their reasoning or their conclusions. One of the earliest cases is Lloyd v. Lee (1 Strange, 94), where
There is a distinction taken in some of the cases between obligations which are void, and such as are only voidable, and it is said that where the original undertaking was void, it cannot form the basis or consideration for a new promise, although it may where it is only voidable. Thus, in Meyer v. Haworth (8 A. & E., 467), Patterswon, J., says, speaking of a supposed promise of the defendant while a married woman, upon the. sale of the goods: “Such promise was not like that of an infant voidable, but was void.” This distinction, however, applied to the original express contract alone, when there is one, will not explain all the cases. Thus, where money is lent upon an usurious contract which is totally void, yet, if the borrower subsequently promise to repay the money, that promise will be enforced by the courts. (2 Taunt., 182; 19 John., 147.) On the other hand, where a creditor obtained from the debtor a promissory note for the residue of his demand, as a condition of his joining with the other creditors in a composition deed acknowledging satisfaction by the receipt of a part of their debts, the note is void in law as a fraud upon the other creditors,
Where the original contract or promise is in itself the whole consideration upon which'the new promise rests, the distinction which has now been adverted to is. sufficient to dispose of the case. If that contract was wholly void, it alone will not sustain a subsequent promise to fulfill it. Thus, in Lloyd v. Lee (1 Strange, 94), already quoted, the new promise of the defendant rested entirely.upon her having given a note during coverture. This note was void; and as there was no proof of any other consideration, either for the note or the new promise, the action was not sustained. But where there is, beyond or before the void security or agreement, a moral obligation or duty, arising from benefit received or otherwise, which would raise an implied promise, except for a disability to make a promise, which the law imposes—a promise made after the •disability is removed can rest upon this benefit and duty as a sufficient consideration. The learned note to Wennall v. Adney (3 B. & P., 247-252), which has been cited and approved by the judges in subsequent cases, requires some qualification or explanation, where it states that “if a contract between two persons be void, and not merely voidable, no subsequent express promise will operate to charge the party promising, even though he has received a benefit from the contract.” This remark is strictly true as to a promise founded upon the contract alone; but the case of usurious loans, which the borrower will be held to pay upon a subsequent promise, shows that when, behind the void, contract, there is a sufficient consideration, it will sustain the subsequent promise. The rule stated in the residue of the note needs no qualification, and has often received express judicial approval: “ An express promise can only revive a precedent good consideration which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action, if the obligation on which it is founded could never have been enforced at law, though not barred by any legal maxim or statute provision.” The receipt
But this rule would not help the case of a subsequent pn> mige to pay for goods sold or delivered to the promisor while a married woman, at common law. The difficulty in such a case was that which was seen in the two cases in the Court of King’s Bench to which I have referred. (2 B. & A., 811; 8 A. & E., 467.) In such cases, at common law, the goods were, in law, supplied to the husband, and the price was a debt owing from him, and never from her. If, .therefore, she gave a note, or other express obligation, it was not only void, but had no consideration. Even if her disability to contract were removed, or did not exist, yet, as long as the rules of the common law as to marital rights remained unchanged, there was nothing from which the law could imply a promise to pay, because the goods supplied to her became her husband’s, and she acquired no beneficial interest in them. Thedaw might imply a promise on.his part to pay for them, but not on hers. For this reason, I agree that, at common law, a promise by a woman, after coverture, to pay for goods supplied to her, or, at her request, while married, could not be sustained.
But the statutes of this State, passed in 1848 and 1849, in respect to the rights of married women, give a different aspect to such a question. (Laws of 1848, p. 308; id., 1849, p. 528.) Since these statutes, any married female may take from any person, other than her husband, and convey, personal property, and it will not be subject to the disposal, or to the debts, of
The transactions stated in the complaint, in the present case, occurred in 1852, after those statutes. They are to be taken to be actual and bona fide sales and transfers of property to' the defendant, who-was then a married woman. She became, by-these transfers, the owner of these goods; and although she was incapable of any agreement, express or implied, to pay for them, yet that was merely on account of the existence of a legal rule or maxim. The delivery of the goods to her, at her request, under the statute which made them hers, and not her husband’s, was a good consideration, out of .which an implied promise would at once have arisen, had it not been suspended by the rule of law as to her disability to make an executory agreement. When that disability was removed, it furnished a sufficient consideration for her express promise upon which these actions were founded. The case comes precisely within the rule of the note to Wennall v. Adney; and it is relieved of the difficulty which was fatal to the plaintiff’s, action in the other cases referred to..
The demurrer should have been overruled in the court below, and their judgment should be reversed.
Judgment reversed and rendered for plaintiff on the demurrer.