Althof v. Conheim

         As to defendant, Elise Conheim, it is admitted in the complaint that she is a feme covert. That being the case, she cannot make a contract that will bind her personally, nor one that will bind her separate property, except in the manner pointed out by statute. (McLay v. Love and Wife, 25 Cal. 367; Smith v. Greer, 31 Cal. 477.)

         As to defendant, Max Conheim, we contend that there is no averment in the complaint showing a cause of action against him. There is no averment that the money was lent to the wife on the credit of the husband, or on his account. It is not alleged that the husband ratified the contract, either in express terms or by implication. It is not alleged that the money lent was used for the purchase of necessaries. Promise to pay by defendant, Max Conheim, is not averred, nor is it assumed that defendant, Elise Conheim, acted as his agent.

         On the contrary, it is shown in the complaint that credit was solely given to the wife; that defendant, Max Conheim, was ignorant of the loan; that when advised of it, he repudiated the contract.

         " The husband at law is only liable for necessaries, and not for money lent. In equity, if the circumstances be such as would render him liable for the necessaries purchased therewith, he will be liable for money borrowed for such purpose, provided it be so applied, and not otherwise." (Story on Contracts, Sec. 97, a. ) As to the liability of the husband where the articles supplied the wife are not necessaries.

         Here, there is no legal obligation growing out of the marital relation, and the contracts of the wife bind the husband only on the ground of her implied authority as his agent. And in such case, the presumption of law is, that the husband did not authorize or assent to her contract. (Ib. Secs. 99, 101 and 103.)

         JUDGES: Crockett, J., delivered the opinion of the Court. Sprague, J., dissented.

         OPINION

          CROCKETT, Judge

         The only point on this appeal is whether or not the demurrer to the complaint was properly sustained. It appears from the complaint that the defendants are husband and wife; that the wife resided in San Francisco and carried on business in her own name, whilst the husband resided in another State; that the wife, desiring to purchase a lot in Oakland, borrowed of the plaintiff $ 520 in gold coin to enable her to make the purchase, and which was actually paid as part of the purchase money; that she took the deed in her own name; that the husband afterwards arrived in this State, and he and his wife took possession of the lot and have resided on it as their home; that they have since sold a portion of the lot and yet retain the balance of it; that for the portion so sold they received a sum nearly equal to the original purchase money for the whole, and greatly exceeding the amount loaned by the plaintiff; that the husband and wife united in the sale and conveyance, and in the receipt of the purchase money, and are now in the joint use and enjoyment of it. The prayer is for a judgment against both, for the amount loaned, with interest, and that it be declared a lien on that portion of the lot which remains unsold.

         It is evident there can be no personal judgment against the wife. (Maclay v. Love and Wife, 25 Cal. 367; Smith v. Greer, 31 Cal. 476; Brown v. Orr, 29 Cal. 120.)

         The complaint does not aver that the purchase money paid by the wife, exclusive of the $ 520 loaned by the plaintiff, was of her separate estate; and, in the absence of such an averment, the presumption is it was common property. On acquiring the title to the lot, therefore, it became the common property of the husband and wife, and was subject to the disposition of the husband alone. The wife, therefore, was not a proper party to the action, and her demurrer was properly sustained.

         But the demurrer of the husband ought to have been overruled. If the wife had no previous authority from the husband to contract the debt to the plaintiff, he adopted and ratified the transaction by using and occupying the lot, selling a portion of it, and appropriating the proceeds to his own use. Whilst dealing with the property as his own, which was in part paid for with the plaintiff's money, borrowed by the wife for that purpose, the law will presume either that the wife had authority to contract the loan, or that the husband has since ratified the transaction and agreed to be bound by it. He will not be allowed to say that he ratifies so much of it as inures to his advantage, by accepting the benefit of a purchase made by his wife partly with the plaintiff's money, but repudiates so much of it as requires the sum advanced by the plaintiff to be refunded. He must take the transaction cum onere, if he adopts it at all. In ratifying the purchase by his wife, he ratifies her engagement to the plaintiff as well, and in adopting one he adopts the other. He also demurs specifically to so much of the complaint as prays that the amount due to the plaintiff be decreed to be a lien on the lot, and for a judgment in gold coin. But it is well settled in this Court that the prayer of a complaint is not the subject of demurrer. (Rollins v. Forbes, 10 Cal. 299; People v. Morrill, 26 Cal. 336.)

         Judgment reversed as to the defendant, Max Conheim, with an order to the District Court to overrule his demurrer to the complaint, and allow him to answer on the usual terms. Judgment affirmed as to the defendant, Elise Conheim, and the entire costs of this appeal to be paid by the defendant, Max Conheim.