Rockwell v. Estate of Robinson

158 Wis. 319 | Wis. | 1914

BjeewiN, J.

The contention on the part of the appellant is that the contract with Eobinson, the deceased, was a joint contract between plaintiff and his wife and said Eobinson, and that the wife of plaintiff, under such contract, was entitled to recover for the services performed by her. This is the real point of controversy in the case. Issue was framed upon it and submitted to the jury in the special verdict and found against the appellant. Point is made that error was committed below in not submitting to the jury two questions requested. But the questions submitted covered the issues and were in better form than those requested, so there was no error under this head.

The appellant set up the defense that -the contract was a joint contract by plaintiff and his wife on the one part and Eobinson on the other, and that the action could not be .maintained by the plaintiff alone. This question was in substance submitted to the jury and found against the appellant upon sufficient evidence. True, the evidence tends to show that when respondent made the contract he spoke of both, he and his wife, doing the work, and that both were present when the contract was made and the talk was that “they,” respondent and bis wife, would stay with deceased and take I'care of him. But it is clear that the jury was warranted in drawing the inference that the respondent was on his own behalf making the contract to do the work with the help of ’his wife, and under all the evidence the jury was well warranted in finding, as it did, that the claimant should be compensated for the services rendered by his wife. Counsel for apjiellant makes a very vigorous argument, relying upon authorities in this and other courts, to the effect that the money accruing for the services performed by the wife was her individual earnings. It is true our statutes, sec. 2343, provide :

“The individual earnings of every married woman, except those accruing from labor performed for her husband, or in his employ or payable by him, shall be her separate property and shall not be subject to her husband’s control or liable for his debts.”

But the difficulty with this argument is that under the findings of the jury, supported by the evidence, the money in question was not the individual earnings of the wife, but belonged to her husband under his contract with deceased Robinson. Emerson-Talcott Co. v. Knapp, 90 Wis. 34, 62 N. W. 945.

Error is assigned on the charge. We have carefully examined the part of the charge excepted to and complained of and find no error in it.

By the Court. — The judgment is affirmed.