127 S.W.2d 515 | Tex. App. | 1939
This suit originated in the justice court; was appealed to the county court, thence to this court. It was instituted by Hefley-Stedman Motor Company against D. L. Humbles and his wife, appellant, Mrs. Ola Humbles, for the balance due on their joint and several promissory note for $169, with interest and attorney's fees, and against appellee R. L. Batte as indorser on such note. The note was given in part payment of a motor truck and was secured by a mortgage lien thereon; and prayer was also for foreclosure of the lien.
Appellee Batte by cross action based on estoppel prayed for a personal judgment over against appellant, Mrs. Ola Humbles, in the event he were compelled to pay the judgment. Appellant, Mrs. Ola Humbles, plead her coverture as defense to her personal liability on the note. Appellee Motor Company alleged that the note was the joint and several obligation of D. L. Humbles and his wife, Mrs. Ola Humbles; that it was executed in part payment of a motor truck to be used by D. L. Humbles in the support and maintenance of his wife and child; that Mrs. Humbles expressly contracted and represented that such truck was necessary for the support and maintenance of herself and child, and agreed to become personally liable therefor.
The jury found, in answer to a special issue, that the truck was necessary for the support and maintenance of Mrs. Humbles and her child, and that she expressly contracted and agreed that she would be personally bound for payment of the debt as being for necessaries furnished her and her child. Judgment was accordingly rendered for the Motor Company against D. L. Humbles and his wife, appellant, Mrs. Ola Humbles, jointly and severally, and against R. L. Batte as indorser; the judgment further providing that R. I. Batte have a personal judgment over against Mrs. Humbles, in the event he should be compelled to pay the debt. A foreclosure of the mortgage lien on the truck was also decreed.
The principal question on the appeal is whether the motor truck purchased was *516 "necessaries furnished" to the wife and child within the meaning of the statutes authorizing a married woman to make a contract therefor. Arts. 4621, 4623, and 4624, R.S. 1925.
We have reached the conclusion that the undisputed evidence shows that the consideration for the note was not "necessaries furnished" within the meaning of the statutes authorizing a married woman to make a contract binding herself personally and her separate estate for necessaries furnished to herself and children. The evidence is undisputed that the truck was purchased in the hope of enabling D. L. Humbles, the husband, to operate it in aid of the support of himself and his family. He was out of employment, and according to the wife had continuously been unsuccessful in all his business ventures. The wife had been continuously employed as a secretary in a law office for some 16 years, and had in the past made the major portion of the living expenses for herself and family; and out of her earnings a home had been bought and paid for. The only way the motor truck could be a necessity was that the proceeds or profits, if any, made from its operation by the husband might be used to help support the wife and child, and to support D. L. Humbles himself. Or, as stated in appellee's brief: "A truck for a man considered by his wife and others as irresponsible in business matters and transactions and who is out of a job, to enable him to do hauling, is almost an absolute `necessary', without which he could not help support his wife and child; whereas the same truck would not be a `necessary' for a responsible business man actually supporting his wife and family from a lucrative job."
Under the facts stated, the case is controlled by the early case of Magee v. White,
In the earlier case of Christmas v. Smith,
We have carefully reviewed the numerous authorities cited by appellees which have bound the wife upon her contract for necessaries furnished herself and children, for the payment of a home, the rent of a dwelling-house, the purchase of a piano and furniture for a rooming-house, an automobile for the sole use of the wife and children, suitable food and clothing, and such things as enable the wife and children to live decently and in a manner fitting their condition and station in life. These cases are clearly distinguishable from the case at bar, where a truck was purchased upon the joint contract of the husband and wife in order that he might engage in a business enterprise in which the wife had no part, and which business was also for the support and necessaries of the husband. See 23 Tex.Jur. 201, 202, § 170.
Another case in point is that of Burleson v. Graves, Tex. Civ. App.
If, as above held, the contract for the purchase of the motor truck was one which the wife could not execute under the statute, then no question of estoppel can arise because of any representations made by her to the effect that she was aiding her husband in the purchase of the truck in order that he might support her and her child, as same are not binding upon her.
The personal judgment against appellant, Mrs. Ola Humbles, and her bondsmen, in favor of the Motor Company, and the judgment in favor of R. L. Batte, as indorse, over against Mrs. Humbles are hereby reversed, and judgment is here rendered that neither the Motor Company nor Batte take anything by their suit against Mrs. Humbles personally and her bondsmen. In all other respects, the judgment of the trial court is affirmed.
Reversed and rendered in part, and in part affirmed.