Sprague v. Morgan

| Ala. | Jan 15, 1845

GOLDTHWAITE, J.

1. The question is not, whether the husband defendant could have been sued below, as upon the ratification of the contract of his wife, in consequence of the acceptance of the services, but is, whether both are liable to this form of action, by reason of the wife’s contract. We think they were so liable; for, although the services were to be rendered after the contract, the wife was bound by it; and although the breach was after the marriage, it was the breach of her contract, in precisely the same manner as if when sole she had given a note, which, falling due after the marriage, the husband had refused to pay.

2. As to the other questions, there is nothing in them. A recovery may be had on the common counts, although there is a special contract, whenever, by the breach of it, the plaintiff is entitled to recover a sum in numero, or which can be rendered certain by mere calculation. In other words, when the damages arising out of the contract are not unliquidated.

3. If, as stated, the contract was to pay a gross sum for the teaching of the pupils for the entire session, and they, after the commencement of the session, were taken away, without any fault of the plaintiffs, or the occurrence of some act which entitled the plaintiffs to consider the contract as rescinded, there is no doubt of the right to recover the whole sum stipulated to be paid. Such, in effect, was the charge of the Court, and we see no error in it.

The judgment of the Circuit Court is therefore affirmed.

COLLIER, C. J.

— Upon the first point considered by my brother Gold th waits, I was somewhat inclined to doubt, but further reflection has led to a concurrence in the conclusion he attained. It is said that where the plaintiff had been prevented from a performance of a verbal contract, by the defendant, a recovery maybe had on the common counts in assump-sit. [1 Chitty’s Plead. 298; 1 East’s Rep. 58 ; 11 Id. 285; 1 Taunt. Rep. 12; 5 B. & C. Rep. 638.]

When a feme sole who has entered into a contract marries, the action must, in general, be brought jointly against the husband and wife, though they state an account, and expressly promise to pay the debt, or perform the contract. [7 T. Rep. 348.] And it has been held, that the husband cannot be sued alone upon an express subsequent promise by himself, unless there be some new consideration for the same,accruing to him, or causing an inconvenience or delay to the creditor. [3 P. Wms. Rep. 409.] If a promise by the husband to pay money upon an ante-nuptial contract of the wife, will not change the duty from a joint to a several liability, a performance by the other party, after marriage, cannot have that effect. This being the law, it necessarily follows that the defendants were both answerable to the plaintiff, upon the contract made by the wife ; that the transfer of her liability to the husband, by the legal effect of the marriage, and acceptance,- or refusal to accept the plaintiff’s services, are equivalent to a positive request by the husband, and make him liable as if the contract had been originally made by him. It results from this view, that the common counts warranted the admission of the evidence, and that the form of declaring was' adapted to the cause of action.