78 P. 1080 | Idaho | 1904
The plaintiff, Charlotte Karlson, commenced this action against the defendants as a copartnership engaged in the lumbering business, and sought to recover upon two separate causes of action. In the first cause of action she alleges that prior to the commencement of the action she sold and delivered to the defendants ninety-six thousand seven hundred and ninety-two feet of sawlogs, for which they promised and agreed to pay her the sum of $3 per thousand, and that after receiving the logs they neglected and refused to pay the purchase price. In the second cause of action she alleges that she sold and delivered to the defendants one hundred and twenty-one thousand and seventy-eight feet of sawlogs, for which they promised and agreed to pay the sum of $3 per thousand, and that, after receiving the logs, they neglected and refused to pay. She prayed for judgment for the total sum of $653.43, together with interest from the date of delivery. To this complaint the defendants answered, specifically denying all the material allegations thereof. The case went to trial before the court with a jury, and the plaintiff proved by her own testimony and that of other witnesses that at the time of the sale of the lumber for which she was suing she was the owner of a tract of timber land which, under the statute (Eev. Stats., sec. 2496), was her separate property, and that the defendants contracted with her to purchase the logs, for which they agreed to pay $3 per thousand as alleged in the complaint. She also proved that the defendants received the logs, sawed them up and sold and disposed of the lumber. It was shown that the defendants had neglected and refused to make any payment on account of this transaction. After the plaintiff had concluded her ease, defendants moved for a nonsuit on the ground "that all of the evidence introduced fails to show that the plaintiff ever at any time made or entered
The plaintiff moved for a new trial and her motion was denied, and she appealed from the order denying her a new trial and from the judgment to this court.
The only question argued here is the right of the plaintiff to recover upon a contract which was not executed in the manner provided for by section 2498, Eevised Statutes. The provisions of that section are as follows: “The husband has the management and control of the separate property of the wife, during the continuance of the marriage, but no sale or other alienation of any part of such property can be made, nor any lien or encumbrance, created thereon, unless by an instrument in writing, signed by the husband and wife, and acknowledged by her upon an examination, separate and apart from the husband, as upon a conveyance of real estate.” The question for our consideration is: Whether or not a third party dealing with a member of the marital community, after securing the property about which they have assumed to contract, and using and consuming the same, can, when called upon to pay the purchase price, interpose the defense that the original contract was not executed by the husband and wife, joining in an instrument in writing, in the manner provided by section 2498, supra. The legislature in enacting section 2498 were endeavoring to prescribe the rights of both husband and wife in and to the separate property of the wife, and at the same time they pointed out the particular manner and method by which they might alienate such property. This statute has for its primary object the protection of the wife and the marital community of which she is a member, and at the same time it gives notice to all strangers to this community that any contract looking to a change of the title to any of the wife’s separate property, in order to be enforced, must be executed in the manner therein prescribed. The title to the wife’s separate property is vested in the wife, while the right of control and management thereof rests in the husband. A sale by the wife
Dernham v. Rowley, 4 Idaho, 753, 44 Pac. 643, is not in point, as there an entirely different character of case was passed upon. The same is true of cases cited from California, as well as those from other courts.
The motion for nonsuit should have been overruled. The judgment and order of the lower court are reversed, and the case is remanded, with direction to grant the plaintiff a new trial. Costs awarded to appellant.