44 Mo. App. 583 | Mo. Ct. App. | 1891
This was an action to recover damages for deceit. The petition stated that the said defendants are now, and were at the times hereinafter mentioned, married and living together as husband and wife; that said defendant, Anna Dinan, without the knowledge or consent, and in the absence, of her said husband, did, on or about the thirty-first day of August, 1888, for the purpose and with the intent at the time of cheating, wronging and defrauding plaintiff and of obtaining money and property from him, at the county of Bates and state of Missouri, unlawfully, wilfully and feloniously take, steal and carry away from one August Schuman twenty-eight head of cattle, the personal property of said August Schuman, of the value of $550 ; that after wards, in pursuance of said fraudulent design to cheat, wrong and defraud plaintiff, and to obtain money and property from him under false pretenses, the said Anna Dinan, in the absence of and without the knowledge of her husband, did take twenty-six head of said cattle to the farm of plaintiff in the county of Cass, and state of Missouri, and did then and there falsely, fraudulently and
The defendants interposed a demurrer to the petition on the ground mainly, it “ showed on its face that the plaintiff ’ s alleged cause of action grew out of a contract between plaintiff and defendant, Anna Dinan, who was shown to be a married woman, whose contract was void, and from which no cause of action could arise in favor of the plaintiff and against defendants oreither of them.” The demurrer was sustained; the plaintiff refusing to
The authorities, so far as we have been able to see, are all agreed that the husband and wife are jointly liable for the fraud or deceit practised by the wife when damage results. But this rule is subject to the exception that, if the deceit is connected with the contract, it is otherwise. Now, it is quite obvious that this exception abrogates the rule itself. It is well. settled that the action of deceit is always connected with the contract. Barnes v. McMullins, 78 Mo. 260 ; Bullock v. Wooldridge, 42 Mo. App. 356; 2 Hilliard on Torts [2 Ed.] 73. And the same is true when the tort is a fraud. Prom its very nature it can only exist in connection with some form of contract. 2 Hilliard on Torts [2 Ed.] 141. So it must unevitably follow that as the husband and wife are not liable for the fraud or deceit of the wife when connected with a contract that they are not liable at all for her fraud or deceit, since there can be no actionable fraud or deceit except when connected with contract. In other words she may, at
The rule itself is clear, explicit and well understood, but may it not be that the exception, as we have stated it to be, is entirely too broad and sweeping? And may it not be that the exception, with its proper qualification, is not repugnant to the rule ? The function of the exception is to limit or restrain the scope and operation of the rule, and. not to destroy it. It would seem that the exception should be such as to give it effect without rendering it wholly inoperative. With the view of accomplishing this it is worth while to widen the range of our inquiry.
The proposition is undeniably true that, wherever a married woman could plead coverture because the action is based upon a contract instead of a tort, a minor could under similar circumstances plead infancy. In Kent’s Commentary, at page 149, note 1, it is stated: “The question of liability in action for torts, where it is more or less nearly connected with contracts, is similar in the case of married women and of infants.” - Judge Cooley in his work on torts, page 116, in the discussion of the liability of married women for their torts, says: “ But the element of contract is as important here as in the law of infancy.” The reasons which would preclude theindirect redress of the infant’s breach of contract by treating it as a tort will preclude the like redress in the case
The fraud was intended to induce, and did induce, the plaintiff to make a contract for the sale of the hats ; but that by no means makes it a part and parcel of the contract. It was antecedent to the contract, and if an infant is liable for a positive wrong connected with a contract, but arising after the contract has been made ( Vasse v. Smith, 6 Cranch, 231; Homer v. Thwing, 3 Pick. 492 ; 1 Esp. Rep. 172; Bristow v. Eastman, Peake’s Rep. (S. C.) 222), he may well be answerable for one committed before the contract was entered into, although it may have led to the contract. * * * An infant may be bound in equity by a contract which the other party has been induced to enter into by its fraudulent representation or concealment,” citing Lord
In the case of Wheeler & Wilson Mfg. Co. v. Heil, 7 Cent. Rep. (Pa.) 179, the defendant, a married woman, entered into a written contract with plaintiffs, by the terms of which the latter delivered to her one of their sewing machines for a certain specified rent, and for a certain specified time, at the end of which it should be returned to plaintiff. Defendant got possession of the machine under this contract, and at the expiration of the time refused to surrender it. Plaintiff then sued defendant and her husband for damages based upon the tort of the wife in converting the property to her own use. The lower court compelled the plaintiff to take a nonsuit, on the ground that the suit was based upon the written contract of the married woman which was void. The supreme court reversed the judgment, and held that, when the remedy for the tort is only for damages by suit, the husband is liable, with the wife, citing 2 Kent. Com. 149; Franklin’ s Appeal, 4 Cent. Rep. 322. In the last cited case it was held that when a tort is committed by the wife she is personally liable unless her husband was both present and directed the doing of it at the time. This was a case where the wife had tortiously converted to her own use certain securities which had been intrusted to her.
The rulings of the English cases are not in line with many of the American decisions to which we have referred. L. A. L. Ass’n’ v. Fairhurst, 9 Exch. 422; Wright v. Leonard, 11 Com. Bench, 257; Capel v. Powell, 17 Con. Bench, 743. It must be admitted that the course of decision even in this country is by no
In the case at ba,r the wife, who was in the possession of the fruits of her own larceny, went to the defendant, a stranger, and falsely and fraudulently represented herself to be a widow and the owner of the stolen property. She offered to sell him the property. He was induced to purchase by reason of her fraudulent representations. Certainly, had it not been for these he would not have made the purchase. Had she stated herself to be a married woman, and that the property was stolen by her, it is clear he would not have entertained any
Ellison and Gill, JJ., believing the petition states a cause of action, concur in the result. The judgment will, therefore, be reversed and the cause remanded.
ON MOTION TO MODIFY OPINION.
The ground of the attachment and the cause of action stated in the petition are identical. The latter we have held to be sufficient, and it results from the very clearest implication that the former is also sufficient. As the undoubted effect of the ruling upon the petition is, to declare the ground of the attachment legally sufficient, we had not supposed that matter any longer open to question. The ground of attachment, and the cause of action stated, are so connected and related that the determination of the one to be sufficient is inevitably a like determination of the other.
But it has been suggested that the propriety of the action of the trial court in quashing the writ of
The plaintiff’s attachment was dissolved, not upon a plea in abatement, but upon a motion quashing the same ; hence the cases cited, where the attachment was disposed of upon the issues made by plea in abatement, are not applicable here. Lane v. Fellows, 1 Mo. 353, was where the attachment was dissolved on motion of the defendant. There was judgment by default for want of plea. The plaintiff brought error to reverse the judgment. It was said by Judge Pkttebonh, who delivered the opinion of the court, “that a writ of error does not lie to reverse an order of the circuit court dissolving an attachment.” This was ruled upon the authority of Shortz v. Quigley, 1 Binn. (Pa.) 226. But, notwithstanding this opinion of the learned judge, he proceeded to pass upon the question of the sufficiency of the affidavit for the attachment. In Curtis v. Little, 7 Mo. 453, the attachment was quashed, on motion of the defendant, on the ground of the insufficiency of the affidavit. The plaintiff appealed from the final judgment. The propriety of the action of the circuit court in quashing the attachment was passed upon. It was held that the affidavit was good, and that the court of
directed.