Russell v. Phelps, 73 Vt. 390

Russell v. Phelps

73 Vt. 390 | Vt. | 1901

Watson, J.

The defendant contends that the contract was executory, and that the property in the sleigh had not passed to the plaintiff at the time of the alleged conversion; but in the way the case was submitted to the jury, the verdict settled the fact that the harrows delivered by the plaintiff to the defendant were according to the contract, or, if not so, that they were delivered to the defendant and accepted by her under the contract. It matters not which way it was, for if either,, it was a performance of the contract on the part of the plaintiff, and the right of property in the sleigh with the right of possession vested immediately in him. The motion for a verdict being based, secondly, upon the ground that the property in the-sleigh had not thus passed, was therefore properly overruled.

V. S. 2644 provides: “A married woman may make contracts with any person other than her husband, and bind herself and her separate property, in the same manner as if she-were unmarried, and may sue and be sued as to all such contracts made by her either before or during her coverture, without her husband being joined in the action as plaintiff or defendant.”

Under this section, a married woman may not only make contracts, except with her husband, relating to her separate property in the same manner as if she were unmarried, but she may also in like manner sue and be sued as to all such contracts made, and to such suits her husband, by virtue of any marital right, is not a proper party: Wright v. Burroughs, 61 Vt. 390. Nor is this right to sue and to be sued limited to any particular court or form of action. Resort may be had to any court having jurisdiction of the subject matter, and to any form or forms of action necessary or appropriate for the enforcement of the rights involved. An action at law may be in form ex contractu *394or ex delicto, as the nature of the injury suffered, or the remedy sought, may require. -This is so1, because under that section of the statute a married woman is given the enlarged contractual powers with the correlative liabilities. Any other construction would do violence to the language of the statute wherein it provides that in the making of such contracts she shall bind herself and her separate property in the same manner as if she were unmarried. Many times an action either of contract or of tort may be had for a breach of contract, and the election therebetween is with the plaintiff; but if an action of tort cannot be had against a married woman in such circumstances, she and her separate propertjr are not bound by her contracts in the same manner as if she were unmarried. The manifest intent of the legislature was to> give her the same contractual powers and make her subject to the same liabilities regarding her separate property, including the liability for torts committed in its management, control, and disposition, as if she were sole, and the law must be construed accordingly. Similar statutory provisions have been given like constructions in the states of New York and Massachusetts: Baum v. Mullen, 47 N. Y. 577; Shane v. Lyons, 172 Mass. 199.

The sleigh in question was the separate property of the defendant, and through her husband acting as her agent, she contracted with the plaintiff to exchange it for some harrows. The contract was fully performed on the part of the plaintiff by the •delivery of the harrows to the defendant and an acceptance thereof by her; but later, when the plaintiff demanded the sleigh, the defendant refused to deliver it to him. It is for this refusal to deliver the sleigh under the contract that the plaintiff seeks to recover damages in an action of trover.

A contract of exchange of property is governed by the same rules of law as a contract of sale: Chitty, Con. 397. In cases of sale, the buyer to whom the right of property has *395passed, if not in default, may maintain trover for damages for the conversion on the vendor’s refusal to deliver, as well as an action on the contract: Benj. on Sales, (4th Ed.) 1144. The conversion was committed by the defendant in the disposition ol her separate property, and she is liable therefor.

It is contended however that inasmuch as the conversion was committed by. the defendant in the presence of her husband and by his direction, the husband, but not the defendant, is liable at common law; and that by V. S. 2648, which provides, among other things, that a married man shall not be liable for the torts of his wife unless committed by his authority or direction, the responsibility for her torts thus committed is still governed by the common law.

The unsoundness of this proposition lies in a misunderstanding of the common law. The purpose of section 2648 was to relieve the husband, except as therein specified, of existing liabilities by force of the marital relations: Story v. Downey, 62 Vt. 243. But at common law he was responsible for only such torts of his wife as did not have a substantive basis in her contract, — -her torts simpliciter.

The contract of a married woman was void, and it could no more be enforced in an action of tort than in an action of contract. No liability therefore rested upon the husband alone, or with the wife, for her torts founded on such contract: Woodward and Perkins v. Barnes, 46 Vt. 332. That the husband has such responsibility by force of his marital relations other than at common law, no contention is made. To such torts, section 2648 has no reference; for it could not have been the purpose of the legislature to relieve the husband of liabilities that did not exist.

Therefore the motion for a verdict on the ground first named, was properly overruled, and in disregarding the requests to charge there was no error.

Judgment affirmed.