Opinion
No. 5469.
July 19, 1930.
APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. D.H. Sutphen, Judge.
Action on assignment of promissory note. Judgment dismissing complaint as to defendant Irene A. Furcht. Affirmed.
Harlan D. Heist, for Appellant.
The supreme court of Idaho has held: "Married women cannot enjoy these enlarged rights of action and property and remain irresponsible for the ordinary legal and equitable results of their contract. Incident to this power of married women to deal with others is the capacity to be bound and estopped by their conduct, and the enforcement of the principle of estoppel is necessary for the protection of those with whom they deal." ( Overland National Bank v. Halveston, 33 Idaho 489, 196 Pac. 217.)
We would have to search long and far to find a decision more directly in point and far-reaching than that of the Vermont supreme court passed upon the following statute:
"R. L. Sec. 2321, provides that a married woman may contract with any person other than her husband, binding herself and separate property as if unmarried; be sued on all accounts made by her without the joinder of her husband, and that execution may be levied upon her separate estate; that she may not, however, become surety for her husband's debts, except by duly executed mortgage. Held, that a married woman may, in conducting a partnership business with her husband, bind herself to third parties for goods furnished the partnership, and such obligations may be enforced against her when sued with him as a partner." ( Lane v. Bishop, 65 Vt. 575, 27 Atl. 499; Krouskop v. Shontz, 51 Wis. 204, 37 Am. Rep. 817, 8 N.W. 241; Scofield v. Jones, 85 Ga. 816, 11 S.E. 1032; Parker v. Kane, 4 Allen (Mass.), 346; Basford v. Pearson, 7 Allen (Mass.), 504, 506; Burr v. Swan, 118 Mass. 588; Major v. Holmes, 124 Mass. 108; Goodnow v. Hill, 125 Mass. 587; Reiman v. Hamilton, 111 Mass. 245; Noel v. Kinney, 106 N.Y. 74, 60 Am. Rep. 423, 12 N.E. 351.)
A.F. James, for Respondents.
The Idaho statutes giving married women the control and management of their separate property with power to make contracts in reference thereto do not enlarge the liabilities of married women or change their status as to contracts except as to their separate property. ( Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497; Bank of Commerce v. Baldwin, 14 Idaho 75, 93 P. 504, 17 L.R.A., N.S., 676.)
A judgment cannot be taken against a married woman unless it is alleged in the complaint and proven at the trial that the indebtedness was for the separate use and benefit of the wife or for the use and benefit of her separate property. ( Ness v. Coffer, 42 Idaho 78, 244 P. 145; Bernham v. Rowley, 4 Idaho 753, 44 P. 643; Jaechel v. Pease, 6 Idaho 131, 53 P. 399; Strode v. Meyer, 7 Idaho 16, 59 P. 893; Bank of Commerce v. Baldwin, supra.)
A married woman cannot bind herself as a guarantor or surety in connection with a community obligation or for a stranger. ( Bank of Commerce v. Baldwin, supra; Overland National Bank v. Halveston, 33 Idaho 489, 196 P. 217.)
Substantially, the complaint in this action alleges that respondent Furcht Auto Company is a copartnership consisting of J.D. Furcht and Irene A. Furcht, husband and wife; that respondent Myers executed to the Furcht Auto Company a conditional sale contract and the latter company by J.D. Furcht made a written assignment of the contract to appellant and guaranteed its payment by the purchaser of the property, and, in the event of any repossession and resale of such property, to pay any deficiency remaining after the sale. The property was repossessed and resold and a deficiency remained. This action was brought to recover judgment for such deficiency. The liability of respondents Myers and J.D. Furcht is not involved in this appeal, the only question being as to the liability of respondent Irene A. Furcht for a several judgment against her separate property, by reason of the assignment, and guaranty aforesaid. Judgment dismissing the complaint as against respondent Irene A. Furcht was entered following the sustaining of a general demurrer to the complaint and failure of appellant to plead further.
The complaint does not contain any allegation, and no attempt is made to show, that the contract of assignment and guaranty was for the separate use and benefit of respondent Irene A. Furcht or for the use and benefit of her separate property. It is the firmly established rule in this state that in order to charge the separate property of a married woman or render it liable to levy and sale for an obligation or indebtedness contracted by her, it must be alleged in the complaint and proven at the trial that the debt was incurred for her own use and benefit or for the use and benefit of her separate property. ( Ness v. Coffer, 42 Idaho 78, 244 P. 145, with collation of earlier cases.) The statutes of this state with reference to the right of married women to contract must be construed as grants of power rather than restrictions of power. Such common-law disabilities in this respect as have not been removed by statutory enactment are limitations upon the right of married women to bind their separate estates, and such contracts as married women are authorized to enter into are limited to contracts for their own use and benefit or for the use and benefit of their own separate estates.
Under the application of the rule above referred to to the facts of this case, the court did not err in sustaining the demurrer and in dismissing the action. The judgment is therefore affirmed; costs to respondents.
Givens, C.J., and Lee, Varian and McNaughton, JJ., concur.