given by law. In any event, the fact that the wife has separate property, if it is inadequate for her support, will not prevent her from pledging her husband's credit.84 The wife herself at common law could not be made liable even for necessaries.85 Now by statute in a few States, not only is she enabled to contract but her separate estate is bound though she herself did not buy the necessaries. Apart from such statutes, if credit is in fact given to the wife, no one else will be liable even though the circumstances were such that she might have pledged her husband's credit.87 The word "necessaries," when used in connection with married women, seems to have a wider meaning than when used in regard to infants. In a Massachusetts case,88 the court said: "As a general rule the term 'necessaries,' applied to a wife, is not confined to articles of food or clothing required to sustain life, or to preserve decency, but includes such articles of utility as are suitable to maintain her according to the estate and degree of her husband." Accordingly the court refused to say, as matter of law, that a gold chain and locket and a gold watch and chain were not necessaries, and evidence that the husband wore diamonds and kept a fast horse was held to be admissible.89 The question whether money lent Ind. 375; Arnold v. Brandt, 16 Ind. App. 169, 44 N. E. 936; Scott v. Carothers, 17 Ind. App. 673, 47 N. E. 389; Thorpe v. Shapleigh, 67 Me. 235; Dolan v. Brooks, 168 Mass. 350, 353, 47 N. E. 408; Prescott v. Webster, 175 Mass. 316, 56 N. E. 577. 84 Arnold v. Brandt, 16 Ind. App. 169, 44 N. E. 936; Prescott v. Webster, 175 Mass. 316, 56 N. E. 577. 85 Marshall v. Rutton, 8 T. R. 545. 86 Hurd's Rev. Stat. Ill (1917), c. 68, § 15; Iowa Code (1897), § 3165; Mo. Rev. St. (1909), § 8308; Lord's Oreg. Laws (1910), § 7039. 87 Bentley v. Griffin, 5 Taunt. 356; Metcalfe v. Shaw, 3 Campb. 22; Shelton v. Pendleton, 18 Conn. 417; Taylor v. Shelton, 30 Conn. 122; Halle v. Einstein, 34 Fla. 589, 16 So. 554; Connerat v. Goldsmith, 6 Ga. 14; Dolan v. Brooks, 168 Mass. 350, 47 N. E. 408; 88 Raynes v. Bennett, 114 Mass. 424, 429. 89 See further, Phillipson v. Hayter, L. R. 6 C. P. 38; Shelton v. Hoadley, 15 Conn. 535; Clark v. Cox, 32 Mich. 204; Sauter v. Scrutchfield, 28 Mo. App. 150. Under an Illinois statute a waist of Honiton lace, costing $200, was held a "family expense" for which a wife could pledge her hus to the wife on the credit of her husband for the purchase of necessaries and which is, in fact, expended by her for necessaries can be recovered from the husband by the lender should be governed by the same principles previously discussed under the heading of infancy and insanity,90 but there is an additional circumstance in the case of husband and wife to which attention is not always directed. If the money is loaned on the credit of the wife there seems no possible ground for holding the husband liable. The English authorities have held broadly that the husband is not liable,91 and these cases have been followed to some extent in this country.92 In equity the husband, on the other hand, has been held liable.93 In the decisions both at law and in equity it does not seem generally to have been regarded as material whether the credit was in fact given by the lender to the husband. This seems, however, a vital point and the importance of it is brought out in a Massachusetts decision.94 § 271. Corporations. Corporations derive their power from the government which creates them, and if they act beyond the limits of power given them by that government, their acts are at least unwarranted by law and, according to many authorities, absolutely band's credit. Ross v. Johnson, 125 Ill. App. 65. A set of "Stoddard's Lectures" was held not necessaries in Shuman v. Steinel, 129 Wis. 422, 109 N. W. 74, 7 L. R. A. (N. S.) 1048, 116 Am. St. Rep. 961. 90 Supra, §§ 243, 255. 91 Knox v. Bushell, 3 C. B. (N. S.) 334; Paule v. Goding, 2 F. & F. 585. 92 Zeigler v. David, 23 Ala. 127; Gilbert's Ex. v. Plant, 18 Ind. 308; Anderson v. Cullen, 16 Daly, 15; Schwarting v. Bisland, 4 N. Y. Misc. 534; Marshall v. Perkins, 20 R. I. 34, 37 Atl. 301, 78 Am. St. Rep. 841; Gill v. Read, 5 R. I. 343, 73 Am. Dec. 73. 93 Harris v. Lee, 1 P. Wms. 482; Matter of Wood's Est., 1 De G. J. & S. 465; Jenner v. Morris, 3 De G. F. & J. 45; Deare v. Soutten, L. R. 9 Eq. 151; Kenyon v. Farris, 47 Conn. 510, 36 Am. Rep. 86; Reed v. Crissey, 63 Mo. App. 184; Walker v. Simpson, 7 Watts & S. (Pa.) 83, 42 Am. Dec. 216. See, however, Leuppie v. Osborn's Ex., 52 N. J. Eq. 637, 29 Atl. 433, where the court refused to apply the rule to a case where the husband's default was the result of misfortune. 94 Skinner v. Tirrell, 159 Mass. 474, 34 N. E. 692, 21 L. R. A. 673, 38 Am. St. Rep. 447. It is perhaps a fair implication from the decision that the court would not have allowed recovery even though the money had been borrowed on the credit of the husband, but the decision was primarily rested on the ground that the wife borrowed the money on her own credit. void. It is beyond the scope of this work to enter upon a full discussion of the law of ultra vires, but the effect upon contracts made by a corporation without charter power to enter into such a transaction may be briefly stated. If the contract in question is wholly executory on both sides it will not be enforced.95 It is unnecessary to decide in such cases whether the invalidity is due to lack of power or simply to violation of authority. In the case of contracts which have been executed wholly or partly on either side the distinction becomes important. All jurisdictions agree in allowing some relief to the party which has parted with consideration, but the grounds and the measure of recovery differ. The view which has the support of perhaps a majority of the most authoritative courts is that the contract is absolutely void because the corporation was wholly lacking in capacity to make such a bargain and, consequently, that recovery must be had, on principles of quasi-contract, for the benefit that has been rendered to or by the corporation rather than for what was actually promised.96 A number of American courts, however, refuse to adopt this view and probably with greater justice hold that the contract is not void, that the corporation in fact made it and that it is merely a question of public policy, using the words in a broad sense, whether the contract should be enforced. These courts hold that if the contract has been partly executed on either side, the other party will not be allowed to set up the defence of ultra vires in order to defeat liability on a promise made in return.97 95 Ashbury Ry. Carriage Co. v. Riche, L. R. 7 H. L. 653; Atty.-Gen. v. Gt. Eastern Ry. Co., 5 A. C. 473; Camden, etc., R. R. Co. v. May's Landing, etc., R. R. Co., 48 N. J. L. 530, 7 Atl. 523; Jemison v. Citizens' Sav. Bank, 122 N. Y. 135, 25 N. E. 264, 19 Am. St. Rep. 482. See many decisions collected and discussed in an article by Prof. E. H. Warren, 24 Harv. L. Rev. 534. 96 Central Transportation Co. V. Pullman's Co., 139 U. S. 24, 11 Sup. Ct. 478, 35 L. Ed. 55; Pullman's Co. v. Central Transportation Co., 171 U. S. 138, 18 Sup. Ct. 808, 43 L. Ed. 108; Davis v. Old Colony R. R. Co., 131 Mass. 258, 41 Am. St. Rep. 221; Tennessee Ice Co. v. Raine, 107 Tenn. 151, 64 S. W. 29. See many decisions collected and discussed in an article by Prof. E. H. Warren in 23 Harv. L. Rev. 495. See also in regard to a municipal corporation, Shoemaker v. Buffalo Steam Roller Co., 83 N. Y. Misc. 162, 144 N. Y. S. 721. 97 Heims Brewing Co. v. Flannery, 137 Ill. 309, 27 N. E. 286; Rehberg v. Tontine Surety Co., 131 Mich. 135, 91 N. W. 132; Vought v. Eastern Bldg. In the early law it was held that a corporation could not contract except under its corporate seal, and this rule has persisted in England with some relaxation into the nineteenth century." But in the United States "a corporation may bind itself, in a matter within its charter powers, by a writing not under seal to the same extent as an individual 99 § 272. Convicts; spendthrifts; aged persons. may." 1 Under the early common law one convicted of a felony was incapable of suing though liable to be sued on a contract; 2 but no such rule prevails generally in America.3 By statute in some States spendthrifts and aged persons may be under guardianship and, if under guardianship, become thereby unable to contract as do insane persons under similar circumstances.4 Assoc., 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep. 761. See many decisions collected in 29 Am. & Eng. Encyc. 57. 98 See for the early authorities, 2 2 Harv. L. Rev. 117. 99 East London Water Works v. Bailey, 12 Moo. 532, s. c. 4 Bing. 283; Homersham v. Wolverhampton Water Works Co., 6 Ex. 137; Copper Miners v. Fox, 16 Q. B. 229. Cf. Crampton v. Varna Railway Co., L. R. 7 Ch. 562. 1 Green Co. v. Blodgett, 159 Ill. 169, 42 N. E. 176; Griffing Bros. Co. v. Winfield, 53 Fla. 589, 43 So. 687; Muscatine Water Co. v. Muscatine Lumber Co., 85 Ia. 112, 52 N. W. 108, 39 Am. St. Rep. 284; Speirs v. Union, etc., Co., 174 Mass. 175, 54 N. E. 497; Leinkauf v. Calman, 110 N. Y. 50, 17 N. E. 389; Mershon, etc., Co. v. Morris, 148 N. C. 48, 61 S. E. 647. As to the capacity of a corporation to appoint an agent without a seal see infra, § 275. 2 Banyster v. Trussel, Cro. Eliz. 516; Harvey v. Jacob, 1 B. & Ald. 159. 3 See Estate of Nerac, 35 Cal. 392, 95 Am. Dec. 111; Coffee v. Haynes, 124 Cal. 561, 57 Pac. 482, 71 Am. St. Rep. 99; Estate of Donnelly, 125 Cal. 417, 58 Pac. 61, 73 Am. St. Rep. 62, in which reference is made to a California statute copied from a New York statute, depriving one who has been imprisoned for life of the capacity to sue, and of all civil rights. See further Platner v. Sherwood, 6 Johns. Ch. 118; Davis v. Duffie, 8 Bosworth, 617. 4 Lynch v. Dodge, 130 Mass. 458 (spend thrift). Authority to enter into a sealed contract must be under seal. 275 In some states authority for certain acts is required to be in writing. 276 Contracts made by an agent in his principal's name are contracts of the principal.. 281 Agents' liability when the principal though disclosed is not bound. 282 Different situations where the principal is undisclosed... 283 Rights and liabilities of the agent where the agency is undisclosed.. 284 Rights and liabilities of an agent who discloses his agency but does not name his principal. . . 285 Rights and liabilities of the principal where the agency is undisclosed.. Rights and liabilities of the principal where the agency is disclosed but the principal not named.... 286 287 What is sufficient disclosure of the principal.. 288 Election of remedies where the principal is undisclosed... 289 Undisclosed principal rather than his agent is entitled to enforce the contract 290 Defences to actions by an undisclosed principal. . . . 291 Defences to actions against an undisclosed principal. 292 Defences to actions by the agent of an undisclosed principal. 293 Defences to actions against the agent of an undisclosed principal. 294 295 Sealed contracts.... 296 When simple contracts binding the principal may be implied. 297 298 299 A principal not liable on a negotiable instrument may be liable on its dishonor 303 Only parties to negotiable instruments have the right to enforce them..... 304 Public agents.... Procedure in enforcing rights and liabilities of unincorporated associations.. 309 Executors and administrators are liable personally on their contracts..... 310 |