
    Kennedy, Administrator, v. Swisher, et al.
    [No. 5,198.
    Filed March 8, 1905.]
    1. Husband and Wife. — Wife’s Separate 'Earnings. — A” wife’s' sep--arate earnings for services'to persons-other-than, tire-members of-the . family belong to her and not to her husband,-.. 579.,...
    2. Same. — Member of Household. — Where the wife performs services for a third party, at the time a member of the husband’s.household, ' subb service being performed as a part of her household work,“com-1 pensation for such'service belongs to the.liu^band. --p. .079,. . ...
    3. Same — Wife’s Separate Contract — Earnings.—Where a husband contracted with the decedent to take care'of such decedent in consideration of the use of the decedent’s'house free'of reHtl'Bút'the'hñs- - band’s-wife was-not a party -to- such-eontraet, and-she-afterwards orally contracted with the. decedent to provide board and .take care • of the "decedent, súch'contract-with the'wife,is enforceable, notwithstanding the husband liad- sq .contracted. p._ 679, . . , . , -
    4. Trial— /Special Interrogatories. — Harmless Error. — Where the.answers to the interrogatories to the jury show that the facts alleged in . 'a paragraph-of auswiarare untrue, the error'in sustaining á demurrer ' to-such,paragraph is harmless, .p. 081. . ' ,-....., -. - ■
    5. .Pleading.-; — Oval Contract — 17ant ,of Consideration. — Under the Indiana code it is not necessary to file an answer of want of 'consid- -' érafión’for an'Oral contract," "a's the burden is'on plaintiff to plead and - -prove' a, considerat-ioh. ‘ -Under the - statute concerning .decedents’ • estates no answer need be. pleaded except a set-qff or- counterclaim. j>. 682. ‘..... ” ' . ,. . ' " .
    6. TrÍÁÍÍ. — Instruction.—Oraí Contracts. — Want of Consideration. — ■ ''Burden:-^.In añ-action "by a-married woman for' services--performed ■'"fortín administrator’s,, decedent, under,an o.rgj .contract, the'b.urden of proof, that there..was a consideration for.su.ch contract.was upon the plaintiff, and an instruction that the burden was on defendant to show á want of consideration-was'erroneous; though' defendant-had -Jileaded'a want of consideration specially. , .p.,683; .......- -
    From Montgomery Circuit Court; Jere West, Judge.
    Action by Lizzie R. Swisher and husband against Schuyler C. Kennedy, as administrator, of the estate of Volney Q. Irwin, deceased. From a judgment for plaintiffs, defendant-appeals.
    
      Reversed.
    
    
      F'. tí. Snyder and S. C. Kennedy, for" appellant.
    ...A. D. Thornas and if. 5$. Foley, for .appellees.
   Black, J.

This was’ a claim agáinst tbe éstate' of Volney Q. Irwin, deceaséd, represented by the appéllant, filed by the-appellee Lizzie R. .Swisher, 'for boárd furnished by her to tbe decedent for seventeen weeks, commencing April 1, 1903, and continuing until bisdeath, July 27, 19 03, and for'care'and attention, described’, bestowed on'him by her" during' the same'period, “which-services,” if was alleged, “‘were rendered atibe special instance and request of «aid decedent, for'which he'promised to'pay -hér- well'-for hentroiible.and expense,” -etc.the'other appfellee,' Frank D. Swisher, being joined as a nominal'plaintiff with‘her jn tbe suit, as her husband,-and-as evidence of bis-acqui■escence in her claim, and of relinquishment of any claim on his part for the services and expenditures.

A demurrer to the first paragraph of the appellant’s answer having been sustained, this ruling is assigned as error. In this paragraph it was alleged that the decedent and Frank D. Swisher, April 1, 1903, entered into a written contract as follows: “This memorandum of agreement, made and entered into this 1st day of April, 1903, between Yolney Q. Irwin and F. D. Swisher witnesseth, that said Irwin has this day leased to said Swisher the property where the said Irwin now resides, said Irwin reserving to himself the two> rooms now used and occupied by him. It is agreed that said Swisher and his family are to take care of said rooms and are to care for said Irwin in case of his sickness, and this is to be full compensation to said Irwin for the use and rent of said property. This lease is to be in force for one year from this date, or until the government shall take possession of said property, if proceedings to condemn said property are effectual. F. D. Swisher, V. Q. Irwin.”

It was alleged that the claimant was the wife of said Frank D. Swisher, and one of his family, at the time of the making of this contract, and she had so continued to be; that, pursuant to said contract, Swisher and his wife, with the rest of their family, moved into the house of Irwin about the 1st day of April, 1903, and they continued to reside therein under said contract, paying no rent therefor, except the care and attention they gave to Irwin and his rooms, and that Swisher and his wife and family still were, and had been, occupying the house ever since they took possession thereof under and pursuant to said contract, which was the only contract between the decedent and Frank D. Swisher; that, at the timé said contract was entered into, the claimant knew of the same, and made no objection to it, and ever since the execution of said contract she had continued to live with her said husband in said property, knowing that lie was to pay no rent for the same, except in caring for the decedent and his said rooms.

In this_ State all legal disabilities of married women to make contracts are abolished, except in certain instances, not here involved (§6960 Burns 1901, §5115 R. S. 1881) ; and a married woman may carry on any trade or business and perform any labor or service on her sole and separate account, and the earnings and profits of any married woman, accruing from her trade, business, services or labor, other than labor for her husband or family, are her separate property (§6975 Burns 1901, §5130 R. S. 1881). While-the statute does not relieve a married woman from the duty of personal service for her husband and family, it vests in her the ownership of earnings which accrue from her services for others. Arnold v. Rifner (1896), 16 Ind. App. 422.

Services rendered by a married woman, by reason of her marital relation, in assisting her husband to carry on his business, voluntarily and without any contract or expectation of payment therefor, are services belonging to her husband, for the loss of which, through the wrongful act of a third person, the husband may recover from the wrongdoer. Citizens St. R. Co. v. Twiname (1880), 121 Ind. 375, 7 L. R. A. 352. Where services of a married woman for one not a member of her family, but for the time being a member of the household of her husband, were rendered, not upon her own separate account, but as a part of her household work in the family of herself and her husband, it was held that they were properly included in a demand of the husband for compensation. Board, etc., v. Brown (1892), 4 Ind. App. 288; Hensley v. Tuttle (1897), 17 Ind. App. 253.

While the statement of claim showed that the claimant rendered services to the decedent at his special instance and request, for which he promised to pay her well, the paragraph of answer in question, to recapitulate', set up the making' of "a written contract between the decedent and claimant’s hnsband alone, wheréby'the decedent leased á portion of a house to the claimant’s husband, 'it being agreed by the parties tó the contract‘that, as' cb'fnpehsatio'n for rent, the claimant’s husband and bis family should take care of the rooms reserved by the decedent for himself; and‘ should care for' the decedent in cáse of liis sickness. It was further shown that the lessee and' his' family,- 'including his wife, moved into’ the’house and óccúpie'd it" under and pursuant to thé lease, "paying iib rent except'the" cafe and attention they gave to thé "decedent and'his "rooms’; also that the claimant" knew "of the contract between" her husband and the decedent, and did not object to it, aiid'that she lived with'her husband in'the house,'knowing that he Was to pay no rent, except in caring for the decedent and his rooms. All this is not incompatible with the- averment that the claimant’s services were.rendered’under'á'contract between herself and' the decedent. -They weré" services not in the nature of labor for her hu'sbánd'ór family, in that they were rendered for a stranger,' Who did nat reside with or constitute a part of’the household of her husband." It is hot made to appear that she consented or 'agreed either with her husband or with' the decedent to render any service for the latter under or pursuant' to the written . contract^' or that her services were inndéred'under of'pursuant to that contract, or by way of assisting her 'husband in' the performance of his obligation úndér 'that contract.'

If it be agreed that such services as she performed were contemplated by the parties'to that'contract'as being embraced by its terms, yet', she being not a party’to the written contract, and being by the statute entitled to her earnings accruing from her services or labor, other than labor for her husband or family, and being ‘nbt under disability to make contracts for such services or labor, a valid' and enforceable oral agreement might afterward be entered into by and between her and the decedent "for the performance of the services in .question-,--for compensation'to be-paid-her by tbé-decedént.'" T-he -claimant’s husband-,- as’suchy-was. under' obligation-to> support her -and to provide-her- a-place of residence,'-and'she was--under marital obligation to render her personál service in the householdbut- she was not -under-obligation, as .a wife, and without -her consent,--to-pay-oí* help to pay .the' rent'by services outside'of the household,, and-for- a--stranger,- merely -because-her husband Had. inclüdéd-'thém -as--part-consideration of-buch-ah executory contract,-though for her 'voluntary "serviee-by-way df" assist1 in-g-her"husband or-family--tó páy-rent for the-family -residence she'could nof -recover from anyone.-' ’ •

She having-performed the-services', it was a. question' of--fact whether she1 contributed-them-as-services for'her husband-'or family, 'or performed them- pursuant- to--an agreement between-herself "and tbe-stranger-for whom they Were--rendered; •’'It-was-"specially'-found ‘by- the" .jury," in answer-t"o-interrogatories, amongst other things, 'that the claimant-d-id -not -eUtér into- the contract signed.'by "her "husband and'the-decedent; that-she did--not 'enter into possession of -the property in question "in pursuance of'-that contract; -that she1 Occupied the property- as wife,' "and--not under-and by virtue of'that-contract ;--and‘ that it was'not a fact-that she had-knowledge of'the-terms of that -contract at-the time -it was entered'into,-and‘ever'sinóe., ' So "far -as any allegations- of the- "first paragraph óf -answer contrary to these special findings might be regarded as adding any strength to-the-answer, there could be- unavailable error in giving them-no.-influence in ruling-upon-the sufficiency of the answer; , it thus affirmatively appearing that-such "allegations'were involved in the trial, "and'found to be not' true.-1

- 'It-has been assigned here .that'the.-court .erred"-in-'over-, ruling" the -motion -of the • appellant' for judgment in; his favor on-the answers of’the jury-to the-interrogatories submitted to‘them. , We have'taken'occasion, for other purposes,, to examine-these special.findings-, and we would-be unable to sustain this assignment; but, as the learned counsel for the appellant, possibly not placing much dependence on this assignment, have not complied with rule twenty-two- of this court, by making in their brief a concise statement of so much of the record as would fully present this matter, wé will not discuss the Subject. See Perry, etc., Stone Co. v. Wilson (1901), 160 Ind. 435.

It is claimed by the appellant that the court erred in two of its instructions to the jury, as to one- of which he has failed to set out in his brief the instruction, or a succinct statement thereof, referring to the pages and lines of the transcript. Cleveland, etc., R. Co. v. Stewart (1903), 161 Ind. 242. In its second instruction, the court, referring to the answer of no. consideration and the answer of payment, instructed the jury, in substance, that the burden as to each of these paragraphs was upon the appellant, and that, before he could defeat the plaintiff on account of the matters set forth in these answers, respectively, he would have to prove all the material allegations therein contained by a preponderance of the evidence, but that if he should fail to establish that all the claims sued on had been paid, but should show that a part of the claim had been paid, he would be entitled to credit of whatever he should establish had been paid. Counsel for the appellant say, by way of objection to this instruction, that it is not true that he (the defendant) would be required to prove these answers; that proof of them by evidence furnished by the claimant (the plaintiff) would be as effective as proof produced by the appellant; citing McDougal v. State (1882), 88 Ind. 24; Collier v. Collier (1898), 150 Ind. 276; Indianapolis St. R. Co. v. Taylor (1902), 158 Ind. 274; Pittsburgh, etc., R. Co. v. Lightheiser (1904), 163 Ind. 247; Pittsburgh, etc., R. Co. v. Collins (1904), 163 Ind. 569. We can not say with desirable certainty tha-t the jury might not understand from the form of this instruction that the defenses therein mentioned could be maintained only by evidence produced by the appellant, excluding from consideration legitimate inferences from evidence produced by the claimant' herself. It is stated by counsel for the appellant that the decedent never paid anything to the claimant personally. So far, therefore, as the part of the instruction relating to the answer of payment is concerned, it is manifest that it can not be regarded as having worked any material harm to the appellant; the answer of payment being one of confession and avoidance of the cause of action declared on in the statement of claim, which related solely to a contract between the claimant and,the decedent.

Among the paragraphs of answer there was a general denial. It is not necessary in an action under the code to plead a want of consideration for an oral promise, after pleading a general denial, under which the plaintiff has the burden of showing a consideration for the promise. Bush v. Brown (1875), 49 Ind. 573, 19 Am. Rep. 695. Under the statute concerning the settlement of decedents’ estates (§2479 Burns 1901, §2324 R. S. 1881) it was not necessary, though permissible, for the appellant to plead any matter by way of answer, except a set-off or counterclaim.

It was necessary to the claimant’s recovery that the consideration alleged in the statement of claim be proved as alleged. Want of consideration was pleaded, and the court directed the attention of the jury to that defense.

Though the husband was bound by his separate contract, and liable for nonperfonnance'thereof on his part, the claimant, not a party thereto, was not bound thereby to render such services as were contemplated therein, and the alleged promise of the decedent sued on, if the contract were proved as alleged, would not be based on a consideration consisting of the promise of the husband, and the alleged contract of the decedent with the claimant herself would not be nudum pactum. If the claimant’s services were, with her assent, rendered by way of performance of her husband’s contract, lifer services would extinguish her'husband’s liability. The defense of want of consideration "wbúld' be sustained, if it were not proved by a preponderance of the evidence that the claimant rendered her services under and pursuant 'to the Separate agreement alleged between herself and the d'é-' cedent; and-if, upon the whole' evidence produced by’all'the parties, the jury should conclude- that" she voluntarily' rendered Her services by way of performing labor fór her husband and the family, there could'be ho consideration' for the alleged promise of the decedent in suit. It would have been proper for'the jury, in passing upon the question as"to" the consideration Of the contract in suit, to consider all the'evidence pertinent to such matter, having due regard'to the' burden upon the claimant............. ' '

The action was one in which it'was’héc'essáry to show'in the complaint the consideration of thé promisé Of the'decedent. The answer of want of consideration -was -hot' 'an answer of confession Of the cause of action shown ih the complaint, and avoidance thereof by new matter, it wás a denial, in general terms, of an essential'part ¿L the complaint, which denial, as above'stated, was included'in "the answer of general denial pleaded. The burden of -proof was upon the cláimant as to the existence of the consideration, as well as to that of, all other material facts'alleged, ih the complaint, and it did hot shift to 'the appellant. The evidence being all in, the court,' in submitting' to the jury the determination of the question as'to the consideration of the contract in suit, might properly' have informéd the jury that the burden of establishing' the consideration alleged, by a preponderance of the evidence, was upon the claimant. ' It was error to instruct that the burden as to the defense of want of consideration was upon the appellant.'

.Judgment reversed, and cause remanded for a new trial’.'  