Meyers v. Rahte

| Wis. | Jan 15, 1879

LyoN, J.

Under the stipulation of the respective counsel (and probably without it), the original complaint of Meyers <& Co., and the petition of Heller <& Ero. to be admitted to the benefits of the action, are to be considered as one pleading, the whole of which is reached by the demurrer.

If an action in equity cannot be maintained by these creditors of Mrs. Rahte, to charge 'her separate estate with the payment of their demands, it is clear that the complaint is de-murrable for the reason assigned (if for no other), that several and distinct causes of action belonging to different parties are improperly united. If these creditors can maintain actions at law on their respective demands, it is manifest that they have no standing in a court of equity. In that case they must pursue their legal remedy in a separate action on each claim. Whether actions at íaw can be maintained on these demands, is, therefore, the controlling question on this appeal. By reference to a few decisions of this court, and to certain statutes, this question may be readily solved.

Conway v. Smith, 13 Wis., 125" court="Wis." date_filed="1860-01-02" href="https://app.midpage.ai/document/conway-v-smith-6598312?utm_source=webapp" opinion_id="6598312">13 Wis., 125, was an action at law against husband and wife on a note given by them for materials used in the construction of a hotel on the lot of the wife. On demurrer by the wife to the complaint, it was held that the statute (R. S. of 1858, ch. 95, sec. 3), which permits a married female to own and hold property to her sole and separate use, and to dispose of the same in the same manner and with like effect as if she were unmarried, includes the power to make all contracts necessary or convenient to the enjoyment of her separate estate; and that such contracts are valid in law, and may be enforced by or against her in legal actions. The rule there laid down has not been disturbed, but has been several times approved in later decisions, and must now be considered as firmly established. Todd v. Lee, 15 Wis., 365" court="Wis." date_filed="1862-05-15" href="https://app.midpage.ai/document/todd-v-lee-6598706?utm_source=webapp" opinion_id="6598706">15 Wis., 365; Leonard v. Rogan, 20 id., 540; Beard v. Dedolph, 29 id., 136.

It appears, both from the original complaint and the petition, that when the indebtedness mentioned therein accrued, Mrs. liahte was conducting and carrying on the business, in the prosecution of which she incurred such indebtedness, in her own name, on her own account, and for her own benefit, on the credit of and with her sole and separate property, which she inherited from the estate of her deceased father; that she received, controlled and used the proceeds and profits of such, business; and, generally, that she conducted it on her sole and separate account, as if she were unmarried.

Todd v. Lee, 15 Wis., 365, which is relied upon by the learned counsel for the plaintiffs to support this action, was an action in equity against a wife, a sole trader, to enforce the collection, out of her separate estate, of debts contracted by her in her business. It was held that the action was properly brought in equity, because at law the capital employed in the business, and the profits of the business, that is, her earnings therein, belonged to her husband; in short, that as to the business and the debts contracted by her therein, she was under the common-law disability of coverture, and hence no action at law in respect thereto could be maintained against her.

This case, in its facts, is very similar to that of Todd v. Lee; and the decision in that case would support this action, in its present form, had not the law been materially changed since that decision was made. A married woman is now entitled to her earnings by virtue of sec. 2, ch. 155, Laws of 1872. This necessarily comprehends and includes the profits of a business carried on by her with capital which is her sole and separate property, as in the present case; and she may make contracts in respect thereto the same as though she were sole. Such contracts are valid at law, and may be enforced by or against her in legal actions, like other contracts between persons sui juris.

It seems very clear, therefore, that the law of 1872 brings t.bis case within the rule of Conway v. Smith, and that the remedy of the plaintiffs, to whom Mrs. Halite became indebted on account of transactions in her business, is at law and not in equity. It follows that the demurrer was well taken, and should have been sustained.

By the Court. — Order reversed, and cause remanded for further proceedings.