25 Ohio C.C. Dec. 117 | Ohio Ct. App. | 1914
The action below was brought by the plaintiffs in error, plaintiffs below, to recover from Alonzo Huff, the defendant in error and defendant below, upon an account for the funeral expenses and costs of burial of the wife of the defendant.
By answer the defendant set up as a defense that he and his wife, Alice Huff, during her lifetime entered into a written contract “to live separate and apart from each other during the remainder of their natural lives, and for the sum of $200 paid by the defendant to .his said wife, and for other satisfactory and valuable considerations it was stipulated in said contract that said wife released
He further alleged that the terms of said contract were fair, reasonable and just to his said wife under the circumstances of the parties at the time it was made, that all the stipulations contained in said contract were fully complied with by the defendant and that by reason thereof he claims he is released from all claims which his marriage relation imposed on him.
To this answer the plaintiffs filed a general demurrer which was by said court overruled. The plaintiffs excepted, and not desiring to further plead, judgment for costs was thereupon entered in favor of the defendant, to all of which the plaintiffs excepted, and thereupon a petition in error was filed in this court for the review and reversal of said judgment.
That the plaintiffs in error rendered the services sued for is not disputed, nor is the reasonableness of the charge made for the same disputed, but the defendant in error denies his liability therefor not because of his relation as husband but because of the contract of separation set up in his said answer.
It is apparent that in such contract the defendant in error sought to relieve himself of the obligation for the support of his wife, and while the terms of
First. The husband is primarily liable for his wife’s debts, and even though the separate estate of defendant in error’s wife, if she had any, may have been liable for her debts, still one furnishing services and incurring expense for the wife’s burial has the election to proceed either against the surviving husband or the deceased wife’s estate to recover for such services and expense. Here the pleadings fail to show whether or not the wife of defendant in error left a separate estate, but whether she did or not is immaterial, as we view the case, for plaintiff in error, having elected to sue the surviving husband on said account, rendered the appointment of an administrator of the estate of the deceased wife unnecessary, and therefore presentation of said account to the administrator of her estate, if one was appointed, was not a condition precedent to bringing suit on the same.
Second. Did said contract of separation relieve the defendant in error from the payment of the amount sued on? Under the common law it was clearly the duty of a husband to pay the burial ex
.Section 7997 of the General Code provides that “The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.”
As was said in Phillips v. Tolerton, Exr., 9 N. P., N. S., 565, 568, this statute “recognizes and is declaratory of the common law. Toledo v. Duffy, 13 C. C., 482; Chittenden v. Chittenden, 22 C. C., 498. The enactment of this statute seems to be a distinct recognition of common law duties and liabilities.” The support of the wife by the husband, under the terms of the foregoing statute, is made obligatory without reference to any separate estate of the wife. If this is so, what is there to exempt the husband from liability on the claim here sued on? The contract of separation? The contract referred to was undoubtedly a valid contract as between the. defendant in error and the deceased
Judgment reversed.
