Pender v. Dicken, 27 Miss. 252

Pender v. Dicken

27 Miss. 252 | Miss. | 1854

Mr. Justice PIandy

delivered the opinion of the court.

This was an action of assumpsit brought by the plaintiff in error against the defendant, on a written contract entered into between the plaintiff and his wife and the defendant, for the rent of a house and lot.

The declaration alleges, that on the 15th September, 1846, and during the lifetime of Mary S. Pender, since deceased, the wife of the plaintiff, in consideration that the defendant should have possession of a certain house and lot in the town of Kosciusko, in Attala county, the property of said Mary S. Pender, from that date until the 25th day of December, 1847, the defendant agreed and bound himself in writing to the plaintiff’ and his wife, to make certain specified repairs upon the premises, or to the value of one hundred dollars; that possession was accordingly delivered to the defendant and held during the term stated, but that he has entirely failed to make the repairs-according to his agreement, whereby an action has accrued to the plaintiff, as survivor of his deceased wife, for the damages occasioned by the breach of the contract. To this declaration, the defendant demurred on the following grounds. 1st. That the plaintiff sues as survivor of his wife, when the demand was in right of -his wife. 2d. It does not appear that he was executor or administrator of his wife or guardian of her children. 3d. No interest in the premises is shown in the plaintiff, and. therefore that the right of action was in the heir.

The court below rendered judgment on the demurrer for the defendant.

Taking the averments of the declaration to be true, and giv*255ing to them the force and effect of which they were susceptible, we think they showed a sufficient right of action in the plaintiff. Under several states of circumstances, consistent with the statements of the declaration, the plaintiff would be entitled to maintain the action. 1st. The declaration does not show whether the wife died before or after the determination of the lease. If she died after it, the right of action arising from the defendant’s non-performance of the contract was complete during her life, and being a contract to them jointly, it survived to the husband upon her death. 1 Chitt. Pl. (8bh Amer. edit.), 31; Hill v. Saunders, 4 B. & C. 529, (10 Eng. C. L. R. 402). The action was brought after the lapse of more than two years after the expiration of the lease, and the damage is alleged to be to the plaintiff as survivor. It may, therefore, be fairly intended that she died after the defendant’s breach of the contract, and it is a rule of pleading that where an expression is capable of different meanings, that will be adopted which will support the declaration, and not the other which would defeat it. 2d. If she died, having had issue of the marriage, the husband would be entitled to the rents and profits of her real estate by the rales of the common law. The declaration is silent as to the issue of the marriage, but the existence of such issue is not inconsistent with the statements of the declaration. It does not appear at what time the marriage took place, nor at what time the conveyance of the property was made to the wife. If these things took place before the passage of the act of 1846 in relation to the rights of married women, the rents and profits of the property belonged to the husband, and his right to them could not be divested by that act.

We conclude, therefore, that the declaration on its face was sufficient, and if the defendant sought to avail himself of the existence of facts destroying the primd facie right of action set forth in it, he should have done so by plea.

The judgment is reversed, and the case remanded.