108 Ala. 546 | Ala. | 1895
The" complaint contains two counts, one for goods, wares and merchandise, alleged to have been sold by appellants to defendant, and the second, upon an account stated.
The plaintiffs were merchants, and the defendant, a married woman. The appeal is prosecuted by the plaintiffs from the ruling of the court, sustaining the sufficiency of the defendant’s pleas to the complaint. The questions presented require a determination of what is necessary to render a contract valid and binding upon a married women under the present statute. The provisions applicable to the present case are contained in sec
“Section 2345. Liability for ‘post-nwptial contracts and torts of uife. The husband is not liable for the debts or engagements of his wife, contracted or entered into after marriage, or for her torts, in the commission of which he does not participate ; but the wife is liable for such debts or engagements entered into with the consent of the husband in writing, or for her torts, and is suable therefor as if she were sole.
"2346. Wife’s power to contract. — The wife has full legal capacity to contract in writing as if she were sole, with the assent or concurrence of the husband expressed in writing.
“2347. How wife sues, and must be sued. — The wife must sue alone, at law or in equity, upon all contracts, made by or with her, or for the recovery of her separate property, or for injuries to such property, or for its rents, income, or profits, or for all injuries to her person or reputation; and upon all contracts made by her, or engagements into which she enters, and for all torts committed -by her, she must be sued as if she were sole.”
“2350. Power of wife to engage in trade or business. The wife may, with the consent of the husband, expressed in writing, and filed and recorded in the office of the judge of probate of the county of their residence, and of the county in which the business is carried on, enter into and pursue any lawful trade or business, as if she were sole But the consent of the husband is not necessary, if he be of unsound mind, or has abandoned his wife, or is a non-resident of the State, or is imprisoned under conviction for crime.”
The first section exempts the husband from all liability for the contracts of the wife, contracted or entered into by her after marriage absolutely, and, it also declares the liability of the wife for her debts and engagements-entered into with the consent of the husband in writing. It is plain from this section, considered in connection with the contractual disabilities of a married woman to bind herself personally, as they existed at the time of the enactment of the act of February 28th, 1887, that the legislature intended to enlarge her contractual capacity; and if this section stood alone, we would be in-
These two sections as thus construed, are subject to the further provision contained in section 2350 supra. Under this section the wife may enter into and pursue any lawful trade or business as a feme sole, with the consent of the husband expressed in writing, filed and recorded in the office of the judge of probate of the county of their residence, and of the county in which the business is carried on. When the written consent of the husband has been filed and recorded as provided in section 2350, the wife is freed from all contractual disabilities, necessary to the proper conduct and management of the trade and business into which she has entered or may be pursuing, with the husband’s consent thus expressed filed and recorded. Her verbal contracts in relation thereto, which would be valid against a feme sole, will be equally binding upon her. Lathrop-Hatten Lumber Co. v. Bessemer Savings Bank, 96 Ala. 350. Her capacity to make verbal binding contracts is restricted to such as are made under and after the provisions of section 2350 have been complied with. All her other contracts to be valid must be in accordance with section 2846, which requires that they be in writing, and have the assent or concurrence of the husband expressed in writing. 91 Ala. 623, supra. We do not doubt that under section 2346 of the Code, by complying with its provisions as construed and determined, the wife might enter into and make a valid contract although connected with her trade or business, such as the purchase of a stock of goods. Under the one section (2346) her contracts must be in writing, assented to or concurred in by the husband expressed in writing. Under the other (2350) for the purposes of the trade or business, she may contract verbally, her husband having complied with the provisions of the statute. Why it was that the legislature saw proper to empower the wife to enter into valid verbal contracts as a feme sole, without the consent of the husband to the particular contract, or even against his protest, in carrying on a lawful trade or business, the husband having previously complied with the provisions of 2350, and yet in all other contracts, not connected with the business, however simple their nature, or un
One question presented for consideration is the effect of a plea of coverture, without further averment, to a cause of action prima facie sufficient. In some courts of great learning it is held that the contracts of the wife at common law were void, and that- a judgment by default against a married woman was void, this upon the ground, that by marriage the legal existence of the wife became merged in that of the husband, that she could not employ an attorney nor appear in a court of law. — Spencer v. Parsons, 25 Am. St. Rep. 555 and note ; White v. Lumber Co., 6 Am. St. Rep. 650. This court has held, and we believe in line with the weight of authority, that her contracts independent of statute were merely voidable, and to avoid thorn, she must plead her disability. Our statute has certainly abrogated the principle of the common law, that the legal existence of the wife becomes merged by marriage. By our statute the husband is absolved from all liability for the contracts of the wife. She is required to sue alone, and must be sued alone upon all contracts made by her. Code, § 2847. She may contract with her husband and can maintain an action against him. — Bruce v. Bruce, 25 Ala. 563 ; Rollins v. The State, 98 Ala. 79. These are rights and privileges conferred and liabilities imposed upon her by statute, which her husband could not have effected. • At common law her contracts were either void or voidable ; in either view a plea of coverture was a complete answer when sued upon any contract, express or implied, independent of the consent or objection of the husband. Under our statute it is not a conclusion of law, that her contracts are either void or voidable. By section 2851 of the Code of 1886, it is declared “That all property of the wife, whether acquired by descent or inheritance, or gift, devise or bequest, or by contract or conveyance, is the seo-arate property of the wife, within the meaning, and subject to the provisions of this article, saving and except
Reversed and remanded.