Wisdom v. Newberry

Hall, J.

This action was begun before a justice of the peace against the female defendant, then an unmarried woman, under the name of “Mrs. M. A. Palmer.” The plaintiff had judgment and the defendant appealed to the circuit court. Thereafter, Mrs. Palmer married *245 E. N. Newberry, and that fact being suggested by the plaintiff by motion asking that the husband be made a party defendant, it was so ordered, and he thereupon entered his appearance. Afterwards the case was proceeded with to trial resulting in a. judgment for plaintiff against defendants in the sum of eleven dollars, from which the defendants have appealed to this court. This suit was upon an ante-nuptial contract made by the female defendant. At common law such actions were brought against the husband and wife jointly. Bright on Husband and Wife, 79, and cases cited. This is still the rule in this state. Walker v. Deane, 79 Mo. 681 . And that the wife should be made a party defendant would seem to be contemplated by section 3296, Revised Statutes, which provides that her separate personal property “shall be subject to execution for the payment of the debts of the wife contracted before marriage.” The point made that the judgment against the female defendant is void, because it is against a married woman, is, therefore, not well taken. Gruen v. Bamberger, 11 Mo. App. 261 .

The plaintiff, by verbal agreement, leased from the female defendant, a large, enclosed pasture. The plaintiff testified that said defendant, as a part of the contract, agreed to put the fence in good repair, and that she did repair the fences on the east and south sides, “and repaired a little on the west side ” of the pasture ; that, after the repairs stated were made, he took possession of the pasture and put eighty cattle in it, and employed John Brown to salt and look after them ; that, on the west side of the pasture, there was a weed field; that, on June 10, the cattle got into the weed field through the west fence of the pasture, and repeated this several times in July and August. He also said: “In July my cattle got over the west fence into Sexton’s corn, and Sexton claimed that he was damaged to the amount of eight dollars, and I paid him.” The evidence showed that the cattle first got into the field called the “weed field,” and thence got into Sexton’s corn. The *246 evidence also showed that the man Brown repaired the west fence in July, for which the plaintiff paid him three dollars.

The court instructed the jury that if they found for the plaintiff, they should include in their verdict, among other things, “all sums of money plaintiff reasonably expended in fixing up said pasture fence and paid out for damages done by said cattle breaking out of said pasture into premises adjacent or near thereto.” The jury returned a verdict in favor of plaintiff for the sum of eleven dollars.

If the female defendant contracted to repair the fence on the west side of the field and failed to do sor and plaintiff at his own expense made such repairs, the money thus expended was a proper element of damage. The court properly so instructed the jury. Indeed, after the discovery by the plaintiff; or his servant Brown, in June, that the repairs had not been made by the said .defendant, and that, in consequence thereof, the plaintiff’s cattle had escaped -from the pasture, the plaintiff could not refrain from making said repairs, and hold the said defendant liable for damages afterwards caused by the cattle escaping from the pasture in consequence of the want of suóh repairs. Fisher v. Goebel, 40 Mo. 481 , and cases cited. For this reason, the sum of eight dollars, paid by plaintiff on account of the damages done by his cattle to Sexton’s corn in July, was not a proper element of damages, and it was error for the court to direct the jury to include such sum in their verdict.

The judgment was a general judgment against both defendants. Under our present statute, all property of the husband is exempt from all liability for the ante-nuptial debts of his wife, except such property as the husband may have acquired from her. Laws, 1881, p. 161. The judgment against the husband, therefore, should not have been general, but should have been so framed as to have allowed the plaintiff to have had an *247 execution thereon against such property only of the husband as he may have acquired from his wife. Bobb v. Bruere, 23 Mo. App. 612 .

The judgment is reversed and the cause remanded, with directions to the circuit court to permit the plaintiff! to enter a remittitur in'the sum of eight dollars, as of the date of the judgment, and if such remittitur be entered, to modifythe judgment against the husband in the manner above indicated ; but if such remittitur be not entered, to proceed with the case to new trial.

All concur.