Paul v. Kunz

188 Pa. 504 | Pa. | 1898

Opinion by

Mr. Justice Gbeen,

There is but one specification of error in this case, and it raises the question as to whether a married woman is estopped by her silence when in. her presence her husband makes a general declaration that he owed nobody, she claiming that at that time he was indebted to her. It must be borne in mind that the declaration was not made to one from whom the husband was about to buy goods, and it was the fact, as appears from the counter statement, that the debt of the plaintiff was not contracted until more than a year after the declaration. In such, circumstances much doubt would arise as to the application of the doctrine of estoppel, even as to persons sui juris. But passing that by, we think the learned trial judge, unwittingly, of course, omitted to consider the effect of the relation of husband and wife between the parties, in what he said to the jury on the question of estoppel. The testimony has not been printed, and is not before us, but the legal accuracy of what was said by the court can be determined from the facts assumed in the comments of the court. Substantially the learned judge said to the jury that if the wife stood by and heard her husband declare to the person he was addressing that he owed nobody, and made no assertion of her own claim of indebtedness against her husband, she would be estopped from alleging such indebtedness against one who had sold goods to the husband on the faith of that declaration. In this we think there was error. The wife being legally subject to the husband, and under his control, is not the same free agent as would be an independent third person, and therefore would not be subject to an inference from her mere silence such' as would affect a third person. It can hardly be considered that she would be subject to a legal duty to contradict her husband and practically declare him a falsifier when making snch an assertion, her own claim of indebtedness not being called in question. She is bound to render him obedience and respect, and to avoid strife and contention. The character and legal consequence of their relation is thus expressed in Lahr’s Appeal, 90 Pa. 507: “ Their unity, his headship, his power and influence over her, are facts as distinctly recognized in the statutes as in the common law. Therefore, he cannot convey or encumber her property, save as authorized by statute, and very rarely, if at all, will her silence or acts in the presence of her husband operate as an estoppel.” While she may be bound by her positive acts or actual declarations by way of estoppel, her mere silence when in the presence of her husband and his affairs are being discussed does not necessarily have that effect. It was said in Davison’s Appeal, 95 Pa. 394, and repeated in Stivers v. Tucker, 126 Pa. 74, that a married woman “ cannot be estopped by acts and declarations which in the case of a feme sole would operate as an estoppel.” It is also to be considered that in the conversation in question which took place between her husband and a person who represented a firm which, more than a year later, became a creditor of the husband, the declaration of the husband was of a mere general character, and not specific as to her or her rights. It is' thus stated in the charge of the court, “ it is alleged, however, that at the time of the change of the business, some representatives of the creditors went there and made inquiry in regard to the reasons for the change, and that then in her presence Peter Kunz said that the old business had been his and that he owed nobody, and that from that time the business was going on in his own name.” The learned judge then charged that if in those circumstances - she stood by and heard what was said, and she allowed the statement to remain unchallenged, and the credit was given forwhatever was due subsequently upon the basis of such statement, then she must be regarded as a party to the fraud and estopped from setting up her claim. While it may be conceded that if her own claim of indebtedness against her husband had been directly in question, and she had denied any such indebtedness, she would have been bound by her denial, yet here nothing of that kind occurred. Indebtedness to her was not even a subject of conversation between the other parties. Her claim was not challenged in any manner. A general declaration of the bnsband of no indebtedness did not impose a duty upon tbe wife to disclose ber claim to a stranger, especially as he was not at that time proposing to become a creditor, or making inquiry with reference to an immediate sale of goods. It is perfectly well settled law tiiat silence is equivalent to acquiescence only when there is a duty to speak: Danner’s Appeal, 148 Pa. 159; Huston’s Appeal, 167 Pa. 217. It has been many times ruled by this court tbat a married woman cannot be divested of ber real estate by means of estoppel no matter what tbe circumstances were : Gliddeu v. Strupler, 52 Pa. 400; Quinn’s Appeal, 86 Pa. 447; Buchanan v. Hazzard, 95 Pa. 240; Innis v. Templeton, 95 Pa. 262; Davison’s Appeal, 95 Pa. 894; Stivers v. Tucker, 126 Pa. 74. It is difficult to see wby she should be deprived of her personal estate by estoppel by mere silence, when she was not subject to a legal duty to speak, and ber right to that personal estate was not called in question. We feel obliged to sustain the assignment of error in this case.

Judgment reversed and new venire awarded.