Sacramento Lumber Co. v. Wagner

Belcher, C. C. The defendants being husband and wife, bought the real property mentioned in the complaint in February, 1881. At the time of the purchase the defendant Helena paid one third of the purchase price with money which was her separate property, and for the other two thirds they gave their joint promissory note. Shortly after the purchase they commenced to erect a building on the premises, and obtained lumber and material therefor from the plaintiff. The lumber and materials furnished were charged to John Wagner, the husband. On the 4th day of April, 1881, the defendants reconveyed the property to Michael Wagner, their grantor, who held it until the 11th day of July following, and then for the expressed consideration of one dollar, conveyed it back to defendant Helena. [294]Between April 4th and July 11th, the construction of the building was continued, and materials therefor were furnished by the plaintiff and by Hartwell, Hotchkiss & Stalker, and charged to John Wagner. At the time of the conveyance to her on the 11th of July, defendant Helena agreed to pay the bills against the property, including the bills due the plaintiff and Hartwell, Hotchkiss & Stalker, and this she told the scrivener who drew the deed was a part of the consideration of the deed to her. On the same day she went with her httsband to the plaintiff’s managing agent and told him that she owned the property and was going to pay all the bills, and wanted to know how much discount the jrlaintiff would allow her if she paid the cash. She also went with her husband to the place of business of Hartwell, Hotchkiss & Stalker, and asked for their bill, and said she was going to pay it. The bills not being paid, Hartwell, Hotchkiss & Stalker assigned their bill to the plaintiff, and this action was brought to recover the amount of the two bills. The defendant John appeared and consented that judgment be taken against him as prayed for in the complaint. The defendant Helena answered Avith a general denial and a plea of coverture. The case comes here on an appeal by the defendant Helena from the order denying her motion for a new trial.

The fact that the appellant Avas a married woman cannot avail her in this case. She was not disqualified by reason of coverture from entering into a contract of the character indicated in the record. In this State “either husband or wifemay enter into any engagement or transaction with the other, or with any other person respecting property, which either might if unmarried.” (Civ. Code, § 158.)

The appellant accepted a conveyance of the property, and as a part consideration for that conveyance promised to pay the bills sued on. Even if the obligation to pay them rested on John Wagner, or Michael Wagner alone, still the appellant’s promise to pay them was not void because not in writing signed by her. Section 2794 of the Civil Code provides: “A promise to ansAver for the obligation of another in any of the folloAving cases, is deemed an original obligation of the promisor, and need not be in Avriting.....