Niemeyer v. Niemeyer

70 Mo. App. 609 | Mo. Ct. App. | 1897

Gill, J.

Plaintiffs, who are husband and wife, sued the defendant upon an alleged contract whereby said defendant agreed to pay the plaintiffs for the boarding, nursing, and expenses incurred in keeping £\nd caring for one Conrad Niemeyer, defendant’s son, who, it was alleged, was sick and afterward died. The circuit court sustained defendant’s demurrer to the petition on the alleged ground that the co plain tiffs, being husband and wife, were improperly joined as parties plaintiff; and said plaintiffs, declining to amend, suffered judgment to go against them and brought the case here by writ of error.

Pfe>nI?Ih«sland" murrer;6 parties, The court erred in sustaining the demurrer. The petition contained every element necessary to constitute a binding contract between the two plaintiffs of the one part and the defendant of the other part. According to its allegations, the defendant engaged the plaintiffs, Mr. and Mrs. Niemeyer, to take his invalid boy, board, nurse, and provide for him, and in consideration thereof agreed to make reasonable compensation. The services were performed and supplies furnished, and there arose an obligation on defendant to pay therefor. But from the record and defendant’s brief it seems the court below adopted the theory that the wife was an unnecessary and improper party plaintiff — that she had no interest in the cause of action, and could not therefore be joined with her husband in enforcing the same. "Whatever may have been the rule at common law, it is now firmly settled that the wife may, in this state, contract and be contracted with, and may sue and be sued on such contracts, and that, too, whether her husband joins her or not: ‘ ‘A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, * * * and may sue and be sued at law or in equity, with or without her husband being joined as a-party.” Secs. 6864 and 1996, R. S. 1889. It makes-no difference that in this case the services performed by the wife may have been, under the common law rule, such property as the- husband had the right to claim as his own; for it is well settled that “under the influence of equity rules, the husband may waive his right to his wife’s personal property, and permit her to retain the same free from any claim on his papt.” Hart v. Leete, 104 Mo. 315; Botts v. Gooch, 97 Mo. 88, and authorities cited at page 91.

MsAtamto?yw^e-n: bañfañd wife’s The statute above quoted has completely emancipated the wife and gives her full power to contract with any and every person save and except only her husband. This exception results from the failure of -the statute to relieve the husband of his common law disability to contract with his wife. McCorkle v. Goldsmith, 60 Mo. App. 475. But while husband and wife may not at law contract inter sese, they have clearly the power to contract severally or jointly with other persons; and having made a joint contract with another party they must have the right to join in a suit to enforce the same. In Dunifer v. Jecko, 87 Mo. 282, a partnership between husband and wife was recognized and they were permitted to jointly sue and recover on an account due the concern. This, too, was prior to the enactment of the late statute, section 6864, Revised Statutes 1889.

For the error in sustaining defendant’s demurrer to the petition the judgment will be reversed and cause remanded.

All concur.