47 Miss. 165 | Miss. | 1872
In June, 1866, Baxter J. Butler, for the use of Warren Mitchell, filed his declaration against Julia Porter-field, in an action of assumpsit, to recover the amount of three several bills of exchange drawn by William Porterfield on Mrs. Julia Porterfield, and accepted by her, payable in four, six, and nine months, respectively, to the order of J. J. Robinson, in “ payment of the steamer Emma Belt,” each for the sum of $1,833.33, and dated July 11, 1859.
To the declaration, the defendant pleaded her coverture with William Porterfield, at the date of the execution of the bills of exchange. The plaintiff replied, that the several acceptances were given by defendant in part payment of the steamer Emma Belt, purchased by her and held and owned by her as her separate property; and that at the time defendant gave those acceptances she was the owner of a large amount of other property in her own right, and as her separate
To the replications of plaintiff the defendant demurred on the ground, first, that the allegations of the replications constitute a departure in pleading, and, second, because the replication sets up and exhibits against her new matters not set forth in the declaration.
The demurrers were overruled, whereupon the cause was submitted to a jury, who found for the plaintiff, $7,124. Having removed the cause to this court, counsel for Mrs. Porterfield assign the following causes of error:
That the court erred in overruling her demurrers to the replications ; and in submitting the case to a jury when there was no issue for the jury to try.
The questions presented for adjudication will be disposed of in the order of their importance.
1st. Was there in this case a departure in the pleadings? It has been determined that a departure is a matter of substance, and must be taken advantage of by demurrer; to which the defendant has resorted'ba.in this instance. The rule by which this question is determined is very ancient, and is thus stated by Lord Coke : •“ A departure in pleading is said to be, when the second plea containeth matter not pursuant to his former, and which fortifieth not the same ; and therefore it is called decessus, because he cleparteth from his former plea.” In a note to Richards and Hodges, 2 Saund. 84,
The replication in the case at bar cannot be termed a new assignment, which is a restatement, in a more minute and circumstantial manner, of the cause of action, alleged in the declaration. Lee v. Gardiner, 26 Miss. 544, affords an illustration of this class of replications. In that case, the allegation in the replication of •“ a waste of the proceeds of the sale of the intestate’s lands,” was held not a departure from the averment in the declaration of a “a devastavit of the credits and moneys,” which were of the deceased at the time of his death, on the ground that the replication was not an abandonment of the position taken in the declaration, but a restatement of the cause of action in a more minute and circumstantial manner. Hardin v. Phelan, 41 Miss. 112, is an illustration of the general rule cited, that the replication must “support and fortify” the declaration. The court say, “ A married woman generally can make no valid contract, and her promises are prima facie, void. If the plaintiff would rely on any of the special considerations that authorize a married woman, by our laws, to make a binding contract in reference to the support and management of the separate property,
Departure may be of fact, but it is also a departure, if the party puts the same facts on a new ground in point of law. Stephen on Plead. 412. To a plea of coverture at the time the promises were made, the plaintiff can only deny the fact, or reply some matter which shows that at the time the defendant was competent to contract. Chitty on Plead. 580. The replication admits the promise in the declaration to have been made during coverture, and sets up a new promise. The promises are, therefore, different. The consideration of the promise in the declaration was the sale and purchase of
2d. The demurrer having been overruled, the cause was tried, and a judgment had upon the verdict of a jury, without issue taken by the defendant to the replications. "Was this error? As a general rule, a judgment without issue joined is a nullity. The pleadings in a cause must evolve an issue of law or of fact before a judgment can be rendered.” Armstrong v. Armstrong, 42 Miss. 506. Judgments rendered without issues to be determined by them, are nullities. Steele v. Palmer, 41 Miss. 88. The record must show affirmatively that an issue was submitted to the jury, and if otherwise, the judgment is erroneous. Breck v. Mosley & Mallory, 24 Miss. 170. It is recited in the record before us that “ thereupon came a jury, * * * who, having been duly empannelled and sworn, well and truly to try the issue joined, upon their oaths do say,” etc., yet it affirmatively appears in the body of the record, that the defendant did not join issue on the replications, and it is well settled that these recitals weigh nothing against the positive facts of the record. Hence it is, that the judgment in this case, without an issue joined, is erroneous, and for this cause alone would be reversed.
3d. Do the pleadings on the part of the plaintiff in this case set forth a good cause of action against the defendant ? This is a question of grave importance, yet susceptible of certain demonstration. Story, § 468,
Opposed to this doctrine are the cases of Lee v. Muggeridge, 5 Taunt. 36 ; and Vana v. Wells, 8 Ala. 399. The former was decided in 1813, upon transactions originating in 1789. The pleadings presented a case wherein the court held there was a moral obligation, which was considered in the circumstances a good com sideration for the promise. There was a marriage settlement, the property of the intended wife being placed in the hands of trustees, wholly beyond the control of
The opinion in Vana v. Wells is rested solely upon the case of Lee v. Muggeridge, without a reference to other authorities, if not without very mature consideration, as the facts of the two cases are very unlike, and the latter advances views to which we should be slow to give our assent. But the doctrine of Lee v. Muggeridge has been questioned by later decisions, and it is regarded, as it is, an exceptional case. We are of the impression from a careful study of that case, that the conclusion reached was greatly influenced by the terms of the instrument by which the wife held her seperate property.
Lord Tenterden, C. J., in Littlefield v. Shee, 2 Barn. & Adol. 831, referring to the case of Lee v. Muggeridge, said: “ I must also observe, that the doctrine that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation.” In a note to Wennall v. Adney, 3 Bos. & Pul. 249, it is said, “ An idea has prevailed of
Lord Denman, in Eastwood v. Kenyon, 11 Adol. & Ell. 438, approves of the foregoing note, and says : “ that the case of Lee v. Muggeridge, must be allowed to be decidedly at variance with the doctrine ” of that note. He also regards the expressions of Lord Tenterden in Littlefield v. Shee, as amounting to a dissent from the
The doctrine of the foreging note is quoted and approved in Geer v. Archer, 2 Barb. 420. It also received the emphatic approbation of Mr. Justice Spencer, in Smith v. Ward, 13 Johns. 257. The same doctrine is substantially asserted by Bronson, J., in Ehle v. Judson, 24 Wend. 97, and such is declared to be “ the settled rule ” in Geer v. Archer, in which the court say : “ It forms a criterion at once safe, certain, and easy to be understood and applied.” In that case it is said, the test is, “ could it not have been enforced before it was barred by the legal maxim or statute provision?” Watkins v. Halstead, 2 Sandf. 311, was an action against a feme sole upon a promise after disco verture to pay for goods purchased while a feme covert. In an opinion showing an examination of all the authorities, the court say: “ The idea cannot be tolerated, that a precedent consideration can support a subsequent express promise, when the law not only cannot raise any implied promise from such a consideration, but where even the express promise, made when the consideration originated, would be void,” and the opinion concludes, “ On the whole, we are of opinion, that the precedent consideration in this case, cannot support the subsequent promise; and we hold with Lord Tenterden, in Littlefield v. Shee, that the doctrine, that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation.”
Story, on Contracts, § 466, referring to the rule as to moral consideration, says: “ A qualification to this rule, however, obtains in cases where there was originally a sufficient valuable consideration, upon which an
The court in Mills v. Wyman, 3 Pick. 207, observes: “ It is said a moral obligation is a sufficient consideration to support an express promise;, and some authorities lay down the rule thus broadly, but upon examination of the cases we are satisfied that the universality of the rule cannot be supported, and that there must have been some pre-existing obligation which has become inoperative by position of law, to form a basis for an effective promise. The cases of debts barred by the statute of limitations, of debts incurred by infants, of debts of bankrupts, are generally put for illustration of the rule.” Unlike these cases, in the one at the bar, as in Geer v. Archer, “ the supposed obligation which is invoked in support of the promise, is most clearly one which never could have been enforced in any tribunal known to our law,” and herein lies the true grounds of defence to this action. The contract sought to be revived and enforced is void, ab initio, void at the common law, and void, as unauthorized by statute, nor is there resting upon the defendant, any moral or conscientious obligation to perform the original under
By all the text writers and adjudications, a void contract is incapable of revival and ratification by a subsequent promise. Lloyd v. Lee, 1 Strange, 94, and cases therein cited ; 8 Adol. & Ell. 442, and cases; Chitty on Cont. (4th Am. ed.) and cases in notes; Greenl. Ev. § 107; Addison on Cont. 11, 74, 702; Tyler on Infancy and Coverture, 444, § 817; Story on Bills of Exchange, § 182 ; Nash v. Russell, 5 Barb. 556 ; Gaulding v. Davidson, 26 N. Y. 604. And this is the sum of the argument. To this rule there cannot be said to be exceptions strictly, though there are exceptional cases. Such was the case of Lee v. Muggeridze. Barnes v. Hadley was not by any means exceptioned, for there the original undertaking being usurious, the parties destroyed the evidence of the indebtedness, and another note was given for the money actually loaned, constituting a new, independent, and valid arrangement, based upon a valuable consideration. Were the steamboat for which these bills of exchange were accepted, now .in existence, and in the possession of the defendant in the action; and were the parties to destroy these acceptances, and in their stead, substitute other evidences of indebtedness, pursuant to a new undertaking, this case would then be more nearly like that of Barnes v. Hadley. Gaulding v. Davidson, 26 N. Y. is exceptional, but does not militate against the doctrine herein advanced. In that case a feme covert was a sole trader, representing herself to be a feme sole, buying and selling goods as such, without any knowledge on the part of her credit
Kennerly v. Martin, 8 Mo. 698, was a suit by a physician to recover the amount of a bill for professional services rendered in part to the slaves of the defendant, during the life of her husband, basing his right of action upon the express promise of the widow, after the death of her husband. The court said, there were cases in which a moral obligation had been considered a sufficient consideration to support a subsequent express promise to pay, but that the promise must be unequivocal, and the declaration must set forth all the circumstances, and must show that the money is in conscience due.” In that case, it was held that there was no moral obligation whatever, for the defendant to pay a debt con-' tracted during her husband’s lifetime, and judgment was rendered for the defendant. •
Vide, also, Chitty on Contracts, 4th Am. ed. 40, 40 a. and cases cited in notes, where the foregoing doctrines are reported. Cook v. Bradley, 7 Conn. 57.
The question of moral obligation as the basis of a promise to pay, is one upon which the courts have been unable to lay down a definite, or ever a satisfactory rule, and we shall not undertake to reconcile the multiplicity of cases and conflict of views, as the question does not at present arise upon the record before us. The case presented is one not only void at the common law, but contrary to the policy and spirit of the legislation of this state for the protection of the property of married women.
Counsel in his argument has referred to the probable
This suggestion of counsel opens a wide field for investigation, not arising in this case, and not intended to be invaded in this discussion. It is sufficient to say, that an attempt in equity to charge this claim upon the estate of Mrs. Porterfield, would meet with no less serious obstacles than in a court of law, as the case is wanting in the elements to charge her estate. Yale v. Dederer, 22 N. Y. 450 ; Tyler on Inf. and Cov. 444 et seq ; White v. Story, 43 Barb. 124 ; Caldwell v. Savage, 30 Ala. 283 ; Major v. Symmes, 19 Ind. 117 ; Hicks v. Johnston, 24 Ga. 194.
The judgment is reversed and cause remanded.