Summary
In Drais v. Hogan, 50 Cal. 121, 125, relied on by real party, the court held that payment made by plaintiff's husband to satisfy a judgment against her separate property had been made as her agent and that as a matter of law the payment therefore was a payment by her.
Summary of this case from Kirtland Packard v. Superior CourtOpinion
[Syllabus Material] [Syllabus Material] 50 Cal. 121 at 128.
Original Opinion of July, 1875, Reported at: 50 Cal. 121.
COUNSEL
The complaint does not state facts sufficient to constitute a cause of action, and the demurrer thereto should have been sustained.
1st. Because it does not appear from the complaint that Lucinda Jane Drais has suffered any loss or damage on account of the judgment of Budd and Dudley against her.
The complaint shows upon its face that she had separate property, but it was never seized or sold under said judgment. It is averred that to prevent the seizure and sale of her separate property her husband, " for and on her account," paid to the sheriff $ 2884.92; but it does not appear that such payment was made at the request of the wife, but only " for and on her account," to use the language of the complaint. For aught that appears, the husband volunteered to assume the debt, and he certainly could not voluntarily become the creditor of his wife. The only pretense of damage arises from the husband paying a judgment against his wife, which he probably might do, and probably did, in consideration of natural love and affection, and without a thought that he was thereby in a moneyed sense becoming the creditor of his wife. It fails to show any money paid out or expended for her at her request, or that she was or had become indebted to her husband for any money advanced for her use or benefit.
But even if paid at her request, it would not avail the plaintiff in this action, because a promise made by the wife to her husband to pay money advanced for her benefit, to save her separate property from seizure and sale, would be absolutely void, and could not be enforced by him in an action against his wife.
If the husband voluntarily paid the judgment for his wife, and subsequently the wife paid back the money from her own funds, why then she might be in a position to assert a loss to the full amount paid him; and if that loss was sustained by the negligence of her attorney, then perhaps she might sustain her action; but the complaint shows no such state of facts. It shows that " M. J. Drais, for and on account of Lucinda J. Drais, did, on the 14th day of November, 1870, pay to the sheriff," etc., but there is no averment of the payment of one dollar at her request, or that she had ever promised to repay her husband the money he had paid for her.
J. H. Budd and W. L. Dudley, for the Appellant.
D. S. Terry, for the Respondent.
It is said that the complaint is insufficient, because " it does not appear that Lucinda Jane Drais has suffered any loss or damage by the judgment of Budd and Dudley against her," inasmuch as her property was not seized or sold under the execution, that the payment of the judgment by the husband for and on account of the wife to prevent such sale was a voluntary payment, and raised no obligation on the part of the wife to repay the amount.
The complaint shows that at the date of the execution Lucinda J. Drais had a large amount of separate property liable to seizure and sale to satisfy said execution.
By the statute defining the rights of husband and wife (Hittell, 3568), it is provided that " the husband shall have the management and control of the separate property of the wife during the continuance of the marriage." The husband is the agent or trustee of the wife as to her separate property, and must manage it for her interest; if he fails in his duty in this respect the court will afford him a remedy. (Hittell, Sec. 3570; Mahone v. Grimshaw , 20 Cal. 176; Wilson v. Wilson , 36 Cal. 447.)
The husband, by law, having the management and control of the property of the wife, being for that purpose her agent or trustee, was bound to exercise the same care for its preservation as a prudent man would for the preservation of his own property, and of course he was obliged to prevent its forced sale by payment of the judgment, and entitled to retain the amount of any advances made by him for this purpose out of the rents and profits of the estate.
Besides, the judgment being a personal judgment against Lucinda J. Drais, the common property of M. J. and L. J. Drais would have been liable to be taken in execution under it as well as the separate property of the judgment debtor. (Van Maren v. Johnson , 15 Cal. 308.)
OPINION By the Court:
Upon considering the record and printed arguments upon which the cause was submitted, we are of opinion that neither the judgment nor the order denying a new trial should be disturbed here.
1. The payment by the husband of the female plaintiff of the judgment rendered against her, she being the owner of a separate estate, was in effect a payment made by herself--the husband being the agent appointed by law for the management of the separate estate of the wife, a payment made by him, in order to protect the separate estate from forced sale, is, as to third persons, within the scope of his agency, and may be counted upon by the wife, or by the husband and wife, in an action against a third person, as a payment made by her. Besides, the only objection taken in argument in this respect points to the supposed insufficiency of the complaint, in that, after averring that the female plaintiff " was compelled to pay said judgment" (of Budd & Dudley against Lucinda Drais), it alleges that her husband, Madison Drais, paid it " for and on account of said Lucinda," etc., without also alleging " at her request." If there were anything in this objection, it could, at all events, be presented only upon special demurrer, which was not done in this case. It is claimed, however, that even a special request made by the wife to the husband, that he pay off an incumbrance upon her separate estate, and the payment made by him in pursuance of such request, cannot be relied upon in an action against a third party as having the effect of a payment made by the wife herself, and this because it is said that such a transaction between husband and wife would not establish the relation of debtor and creditor between them.
But no force is perceived in this reasoning. What, if any, new legal relation would arise between the spouses because of such a transaction is of no concern to a third party, neither to the party receiving the payment, as Budd and Dudley in this instance, nor to Hogan, who is sued because of the necessity of the payment and the fact of its having been made. Had the husband placed the money in the hands of the wife, to be used by her in paying off the judgment, and had the latter herself appropriated it to that purpose, the transaction as between the spouses would have been in substance the same as that appearing here, and in that case it would have been no concern of the defendant, and we think it no concern of his now as to whether the husband thereby became a creditor of the wife or not.
2. Upon the question of fact as to whether the defendant was intrusted with the general conduct of the cause in the District Court, or was only employed to look after it " on the outside," the evidence is obviously conflicting in substance, and the finding below upon that point concludes the defendant upon this appeal.
3. It is argued that as the complaint counts only upon the neglect of the defendant to conduct the cause properly in the District Court, and inasmuch as it was shown that in that court he had obtained an order granting his client a new trial, and setting aside the judgment theretofore rendered against her, the action of this Court subsequently had, by which the order was reversed and the judgment restored, is not attributable to his neglect, but, if to the neglect of any one, to that of other counsel by whom alone the female plaintiff was represented on the appeal. But this position is not to be maintained. The facts were that the new trial appeared by the record to have been granted by the District Court without any motion therefor, and the application was not supported by any agreed or settled statement, nor by affidavits filed, nor did the record contain any specifications of grounds upon which the motion was rested. (Budd v. Drais, ante, p. 120.) Upon such a record brought here upon appeal, the order granting a new trial could not be upheld, and it was accordingly reversed by this Court. The loss of the cause in this respect was plainly attributable to its mismanagement in the District Court in the respects indicated, for the record was made in that court, and upon the transcript filed here no amount of learning or diligence upon the part of the counsel for the respondent in this Court could have availed to avert a reversal of the order granting a new trial. The order which Hogan obtained in the District Court, granting his client a new trial, was, therefore, owing to the practice he pursued in obtaining it, utterly valueless to her--in fact, it was a positive damage to her interests, inasmuch as it compelled her to incur additional costs upon appeal taken from the order, and without any reasonably well-grounded hope of success upon her part.
4. But assuming that the defendant had the management of the cause in the District Court--and in view of the implied findings below, we must assume that he did--the grossest mismanagement after all is found in his failure to appeal from the judgment itself. The complaint of Budd and Dudley, upon which the judgment against Lucinda Drais was founded, was radically defective, and wholly insufficient to support that judgment. An appeal from the judgment itself would have brought up the pleadings as being part of the judgment-roll, and must have terminated in a virtual defeat of the action. An inspection of the record in that cause, in view of the uniform decisions of this Court, from the case of Rowe v. Kohle (4 Cal. 285), to the present time, as to the capacity, or rather the want of capacity, of a married woman to bind herself by such a contract as was alleged in that case, is decisive upon this point. In this view it was inexcusable in the defendant to have permitted the time limited by statute for an appeal from the judgment itself to pass away, and so to allow the rights of the defendant in that action to become lost in the abortive attempt to obtain a new trial, when such new trial, even had it been properly obtained, was not necessary for her protection under the circumstances of the case.
In the case of Gambert v. Hart (44 Cal. 542), the rules of law governing the responsibility of attorneys to their clients in the conduct of causes are enunciated, and this case is clearly within the principles of that case.
Judgment and order denying a new trial affirmed.