Wren v. Wren

De Haven, J. The plaintiff, who is a married woman, brought this action to recover three hundred dollars from the defendant for personal services as a nurse, alleged to have been rendered by her to him. At the time these services were rendered the plaintiff and her husband were living together, and the defendant was an inmate of their house, but neither the plaintiff nor her husband was under any natural or legal obligation to care for the defendant without charge. In addition to the foregoing facts, it is alleged in the complaint that, prior to the rendition of the services mentioned, it was orally agreed between plaintiff and her husband that she should have and receive all [279]moneys earned by her in nursing defendant as her sole and separate property.

The superior court sustained a demurrer to the complaint, and thereupon rendered judgment in favor of defendant.

The sole question to be determined on this appeal is whether the complaint shows that the earnings of plaintiff in nursing defendant became her separate property, or whether such earnings constitute community property, for which her husband alone has the right to sue. The earnings of a wife during marriage, and while living with her husband and in his house, are community property, and, as such, are subject to the management, control, and disposition of the husband; but the husband may relinquish to the wife the right to such earnings, and when he has done so they become the separate property of the wife. This general proposition is not disputed by defendant, but he contends that the agreement alleged in the complaint did not have this effect, because it related to future earnings, something not then in existence and, therefore, not the subject of a verbal gift. We do not, however, regard this agreement as constituting a gift pure and simple in the legal sense of that term. Section 158 of the Civil Code provides that “ either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property which either might if unmarried”; and section 159 of the same code provides that a husband and wife may bj contract alter their legal relations as to property, and the succeeding section makes the mutual consent of the parties thereto a sufficient consideration for such an agreement. Under these sections there c.an be no doubt that a husband and wife may agree between themselves without any other consideration than their mutual consent, that money earned by the wife in performing any work or service which does not devolve upon her by reason of the marriage relation shall belong to her as her own, and, when money has been earned by the wife