
    Yocum, Admr., v. Allen.
    
      Demurrer — Wrongfully overruled by common pleas — Overruling was not prejudicial to adverse party — Judgment will not be reversed — Rights of married women — Act of March SO, 1871 — Action of wife against husband for money had and received-statute of limitations.
    
    1. Where, in a cause pending in the court of common pleas a demurrer to a petition has been overruled, and upon issues made by answer and reply, the case has been tried to a jury and a verdict and judgment for plaintiff rendered, this court ' will not reverse the judgment, even though satisfied that the demurrer ought to have been sustained, provided it also appears, upon a consideration of the whole record, that the overruling of the demurrer was an error which was not prejudicial to the adverse party.
    2. By the act of March 30,1871, (68 O. L., 48,) concerning the rights and liabilities of married women, the wife is given sole control of her separate property. And where, in a case coming within tbe scope of this statute, a husband has received of the wife money which is her separate property, and claims it as his own, the burden is upon him to show her express assent that he may use the same for his own benefit. This statute applies to a cause accruing in the year 1879 to a wife against her husband for money had and received.
    3. A right of action for money had and received, which accrued to a married woman in the year 1879, being controlled by the statute of limitations in force at that time, is not affected by the act of March26, 1883, (section 4986, amended), removing the disability of coverture as to rights of action concerning a married woman’s separate property. That act applies only to causes of action accruing after its passage. Ham v. Kunzi, 56 Ohio St., 531, approved and followed.
    
      Hence, a suit commenced May 4, 1894, by the administrator of a married woman who deceased February 12, 1889, against the surviving husband, for money had and received by him in the year 1879, is not barred by the statute of limitations.
    (Decided March 29, 1898.)
    Error to the Circuit Court of Mercer county.
    The plaintiff’s action was commenced May 11, 1894, by the filing of a petition in the court of common pleas of which the following is a copy, to-wit:
    
      “The plaintiff says:
    “(1.) That Cynthia Allen and the defendant Jeremiah Allen were united in marriage on or about the 30th day of December, 1877, and lived together as husband and wife continuously within the said state of Ohio, up to on or about the 12th day of February, 1889, at which time the said Cynthia Allen died intestate.
    (2.) That on or about the 19th day of February, 1894, he was duly appointed and qualified administrator of the estate of said Cynthia Allen, and is now acting as such administrator.
    “The said defendant is indebted to the estate of said Cynthia Allen, for money had and received from said Cynthia Allen on or about the 11th day of January, 1879, in the sum of eleven hundred and nineteen dollars ($1,119.00), with interest thereon from the said 11th day of January, 1879, for which sum the plaintiff as such administrator asks judgment and for costs of suit.”
    A general demurrer was interposed by defendant, which being overruled, defendant excepted. Then an answer was filed admitting certain allegations of the petition, and averring: “That the said sum of money so by him received and here claimed and sued on by the administrator as assets of the estate of the said Cynthia Allen, deceased, was a free and voluntary gift to this plaintiff from his said wife; and by him so received and used with the express assent and acquiescence of the said Cynthia Allen; and without any promise on his part to repay her, or any intention on her part to charge him with the said sum of money or any part thereof; that such gift of said money was not only then voluntarily and expressly made, but was thereafter at divers times in her lifetime, acknowledged and reaffirmed by the said Cynthia Allen; and no claim was ever made by her against him at any time for such money so by him received from her.”
    A reply denying the new matter, was filed and the cause tried to a jury. A verdict for plaintiff having been rendered, and motion for new trial overruled, a judgment was entered on the verdict. This judgment the circuit court reversed on the sole ground that the petition does not state facts sufficient to constitute a cause of action.
    
      Raudabaugh <& Bryson and Marsh da Toree, for plaintiff in error.
    The theory of the unity of the husband and wife known to the common law has not been abrogated in Ohio. While the rights of the wife are very much greater under our present statutes than formerly, yet there is no statute that divorces the dependence of the wife upon her husband while the relation of husband and wife continues. Second National Bank v. Merrill, 81 Wis., 151; 29 American State Report, pages 77-880; Barnett v. Harshbarger, 105 Ind., 410; Dice v. Irwin, 110 Ind., 561.
    In the absence of clear and positive statutory declaration extending the statutory limitation to actions between husband and wife, we maintain that the common law rules as to legal remedies between husband and wife are still in force. Angel on Limitations, section 60; Towers v. Ilagner, 3 Wharton, 48; Yoemans v. Petley, N. J. E., 495; 4 Atlantic Reports, 631-634; Alspaugh v. Wilson N. J. Ch., 28 Atl., 722; Yeoman v. Petty N. J. Ch., 4 Atl., 613; Burnheim v. Me Michael (Tex.), 26 S. W., 887.
    
      So our conclusion is that the statute of limitations did not run against plaintiff in error’s dece dent during the time of her marriage to and cohabitation with her husband, and that such period is to be excluded from calculation in determining’ whether the claim is barred. Fourth-man v. Fourthman, 43 N. E., 965.
    The statutes of limitation does not run between husband and wife during coverture. Lahrs Appeals, 90 Penn. St., 507.
    
      Mattingly & Kenney, for defendant in error.
    Counsel for plaintiff in error insists that notwithstanding the repeal of the saving clause as to married women, the court must save her rights.
    This would be substituting the will of the judiciary for that of the legislature, and a violation of the well established rule that courts shall refrain from putting on statutes of limitations any other construction than that which their words import. Buswell on Limitations and Adverse Possession, sections 16 and 127; Pearson et al. v. Stephens, 56 Ohio St., 126.
    Whittaker, in his annotations on sections 4978 and 4986, and Yaple in his note to the same sections say, that “a married woman is not now within the saving clause of the statutes.” Neither of them refers to any exception in her favor even by implication.
    Since the act of 1883 until 1886 then, as to separate estates, and since the act of 1886 as to all estates, married women are not protected by any saving clause in the statutes, and the statute will run against them the same as if sole.
    A person claiming the .benefit of the saving clause of a statute must show that he is entitled to it by express enactment, because his claim to exemption is against the current of the law, and founded on exceptions by no means coextensive with its effective provisions. Ola/rke v. Bank of Miss., 52 Am. Dec., 249; 8 Wait’s Actions and Defenses, page 577, section 5; Bus well, Limitations and Adverse Possession, sections 16, 104 and 106; Bartol v. Eckert, 50 Ohio St., 43.
    The exemptions from the operation of the statutes of limitations usually accorded to infants and married women, depend upon the express language of the statute. Vance v. Vance, 108 U. S., 521; Bemarest v. Wynkoop, 3 Johnson’s Chancery, 146.
    A number of courts have held that the enabling acts did repeal by implication the saving clause. Ashley v. Rockwell, 43 Ohio St., 386.
    The language of these statutes is clear and unambiguous. It has been held in Ohio that if the language by the legislature in a statute is precise and unambiguous, it is the duty of the court to interpret the words in their natural and ordinary sense, although the result may conflict with its idea of public policy. Smith Bridqe Oo. v. Bowman, 41 Ohio St., 52.
    The court will refuse to supply words it is convinced were omitted by mistake, its function being “to interpret legislation, not to supply omissions. ” Bruner v. Briggs, 39 Ohio St., 484.
    It is urged that to permit the statute of limitations to run against the wife in an action by her against her husband would be “to overthrow the settled policy of the common law.” To this it is sufficient to reply that the common law must give way to the statute. The statutes invade and abrogate the common law to the extent of their provisions.
    
      Brief of Robert L Mattingly, for defendant in error.
    I. In a suit for money had and received, the mere allegation that one person, “is indebted to another for money had and received,” and without stating to whose use it was received, does not disclose a legal liability and is bad on demurrer. Rolden et al. v. Power et al., 35 N. Y. Supp., 697; 14 Mise. Rep. (N. Y.), 480.
    II. “Indebted,” will not answer for “due” and is bad on demurrer. “Due,” implies a breach of contract. “Indebted” does not imply a breach of contract; or, that claim has matured, or, that right of action has accrued. Arch&r v. Moore Combination Desk Co., 11 Bulletin, 224. And such allegation of indebtedness, without the further statement of the same “being due,” or, “not paid” is neither within the short form at common law, or, under the Code of Ohio, Rev. Stat., 5086. An answer “that defendant is indebted” is bad in a suit on a money contract. It must be alleged that the amount is due, or, that defendant has not paid. Roberts v. Treadwell, 50 Cal., 520; Francis v. Williams, 15 Minn., 288; McKyning v. Bull, 16 N. Y., 297; Holgate v. Brown, 8 Minn., 243.
    III. Where personal property or money is delivered to the defendant voluntarily, by the plaintiff, and the rightful possession not denied,- the general rule is, that a demand is necessary before suit. And in a case of mutuum, a demand should be alleged in the petition. The possession of money in this case is as reasonably regarded, as that of the husband for the wife, as regarded for his use with an obligation to repay with interest. The petition avers neither demand for return or demand for payment; or, .“for whose use the money was received,” and for omission of the last, if not the first, is had on demurrer.
    IV. At common law, there was no implied promise to restore or repay money of the wife, by the husband reduced to his possession. No implied obligation of the kind as between husband and wife. And very much doubted that a complaint expressly averring a promise to restore or repay by the husband would save such a complaint by the wife or her representative against her husband, from a demurrer. The relationship of husband and wife is not favorable to any implied obligations as' to their dealing with personal property passed from one to the other.
    A plaintiff cannot recover on the common count, where there is an outstanding or unperformed condition, or, where the claim is not due. Holloway v. Davis, Wright’s Ohio Rep., 129.
    And assumpsit would not lie by one partner against another, unless, their partnership account had been adjusted and a balance struck. And no promise to pay would be implied. Emric v. Gilbert, Wright’s Ohio Rep., 764. Hence, a petition by one partner against another would require an averment by the plaintiff that a balance had been struck, and further facts alleging that the balance was due the plaintiff and unpaid. Analogous principles present in the relationship of husband and wife, in case of suits between them.
    The circumstances attending a contract need not be set out, but the facts constituting its breach must be alleged. Brown v. Chaplin et al., 62 Ind., 259; and in an action for money due upon a contract, express or implied, the petition must in some way aver a breach of contract, or show that the sum of money is due and unpaid. 87 Ind., 126; Ohio Code, 5086.
    A line of authorities have given to the word “due” a legal intendment and justified liberal interpretation,. which never has been allowed to “indebted” which uniformly has been regarded as a conclusion of law, and whose broadest meaning does not include “due” or indicate any breach of contract. McNutt v. Boss <& Kaufman, 26 Ohio St., 127; 32 Cal., 172; Mr. Bates on Pleading, 121. Hence, it is held that “an allegation of non-payment, even if not traversable, had better be made, otherwise, no breach is averred.” Downey v. Whittenberger, 60 Ind., 188.
    A failure to state a cause of action, is not cured by any subsequent proof. The objection that a petition does not state facts constituting a cause of action, may be made at any time, before hearing on error in a reviewing court. And such a defect is as fatal as want of jurisdiction. Weil v. Green Go., 69 Mo., 281.
   Spear, C. J.

Two grounds in support of the demurrer are urged: (1) That the attempted statement of indebtedness is so defective as not to amount to a statement of a cause of action. (2) That, upon the face of the petition, the cause of action is barred by the statute of limitations.

1. Ought this court now to affirm the action of the circuit court in sustaining the demurrer to the petition because of the defect complained of? The propositions urged in support of the judgment of the circuit court in this behalf are, put specifically, that an allegation that one person is indebted to another does not disclose a legal liability, inasmuch as the word “indebted” will not answer for “due.” The latter word implies a debt matured, and therefore a breach in its non-payment, while an indebtedness may exist without present liability to pay. And that an allegation that one is indebted to another for money had and received without stating to whose use it was received, or that the receiver promised to pay, does not state a cause of action for money had and received. Also that an averment of demand before suit, was necessary. Further, that there was not at common law, and is not by our statutes, any implied obligation to restore or repay to the wife money reduced by the husband to his possession. The court is favored with a very ingenious and able brief by counsel for defendant in support of this contention.

As to the latter proposition. We think it is settled adversely to'the claim above stated by the act of March 30,1871 (68 O. L., 48), the law in force at the time of the alleged transaction. It is there provided that the wife’s separate property shall remain under her sole control, and where delivered to the husband, shall not be deemed reduced to his possession except by the express assent of the wife. The answer itself seems to recognize the application of this statute to the case.

Respecting the defects in the petition as to allegations of indebtedness, the writer is free to say that he has no sufficient answer to the criticism of counsel, and if we were passing upon the question in a court of first instance, there would seem to be evident propriety in holding the pleading insufficient. But the question before this court is not whether this petition, tested by technical rules, states a case, but whether the error in overruling the demurrer has worked prejudice to the adverse party which requires a reversal of the judgment. The second section of the code (now 4948), enjoined this rule upon the courts: “The

provisions of this part, and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.” And section 138 (now 5115), enjoins a still further duty in the direction of liberality: “The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect.”

These provisions are manifestly of high importance, and in their application here it must be kept in mind that we are dealing not alone with the action of the trial court on the demurrer, but with the proceedings as a whole, and we are required to construe the same with liberality to assist the parties in obtaining justice; and to disregard defects in either pleadings or proceedings which do not affect substantial rights. Now the answer admits the receipt by the defendant of the money from the wife, but avers that it was a free, voluntary gift, expressly made by her to the husband. So that, this averment being denied by the reply, the issue before the jury was whether or not the money was a gift. If it were, the plaintiff had no ease; if not, the defendant had, on this branch of the contention, no defense. The jury, upon trial of the facts, finding it was not a gift, gave their verdict for the plaintiff. How could the issue have been made one whit different from what it was made had the petition alleged, in express terms, that the indebtedness was due, and had been demanded (if, indeed, that averment was necessary), and that the money was received to the use of the defendant? Manifestly it could not. If the money was a loan it was received to the use of the defendant, and a liability for its payment would be implied. In any event, the defendant, if inclined to state facts in his answer, would have been compelled to admit the receipt of the money, and the issue would have ensued as to the character of the transaction by which he obtained it. At least he was no more compelled to make that admission in answer to the allegation as made in the petition than he would have been had the omitted words and allegations been incorporated in that pleading. It appears clear to us that the defects of the petition, in the particulars referred to, were supplied, or at least rendered innocuous, by the answer and reply; so that, upon the whole record, these defects did not affect any substantial right of the defendant.

2. As to the statute of limitations. The contention of defendant is that the action is barred by the effect of recent legislation, and that is the real question upon this branch of the case. The averments of the petition are that the money was received by the defendant January 11, 1879, and that the plaintiff’s intestate remained the wife of the defendant until February 12, 1889, at which time she died. The action. was commenced May 11, 1894. The limitation of six years governs the action, and the question is, at what time did the statute begin to run? Applying to the situation the well-settled statutory rule, based upon section 79, Revised Statutes, that the repeal or amendment of a statute shall in no manner affect causes of action existing at the time of such repeal or amendment, unless otherwise expressly provided, the vital inquiry is, has it been otherwise expressly provided? The statute of limitations relating to actions by and against married women in force Jannuarv 11, 1879, is found in chapter 3, of title 2, of the code of 1853. Section 14 (now 4981, Revised Statutes), covers actions upon contracts not in writing, express or implied. Section 19 of the same chapter (codified as 4986, Revised Statutes), provides that: “If a person entitled to bring any action mentioned in this chapter * * * be, at the time the cause of action accrued, * * * a married woman * * * every such person shall be entitled to bring such action within the respective times limited by this chapter, after such disability is removed.” This section was amended March 26, 1883 (80 O. L., 77), to the effect that the disability of being a married woman shall not extend to rights of action concerning her separate property, and this is the amendment which is cited as affecting the case. If this change is to be treated as causing the statute of limitations to commence to run upon the passage of the act (March 26, 1883), and it is claimed by counsel for defendant that it does have that effect, then, manifestly, a suit commenced May 11, 1894, is barred. But it is held in Ham v. Kunzi, 56 Ohio St., 531, that the act of March 26, 1883, does not cause the statute to begin to run as to causes of action already accrued because of another section of the same chapter, 4974, which expressly provides that the chapter “shall not apply to * * * cases wherein the right of action has already accrued, but that the statutes in force when the action accrued shall be applicable to such cases.” The facts of the two cases are so nearly identical that, without question, the same rule should be applied here. Following the ease cited it results that the statute of limitations did not begin to run until the decease of Mrs. Allen, February 12, 1889, and hence the six years had not expired at the commencement of the action.

An argument of much force is presented by counsel for plaintiff upon the proposition that the common law unity of husband and wife has not been abrogated even in Ohio, and hence, on grounds of public policy, the statute of limitations ought not to be applied to a claim of the wife against the husband, and abundant decisions of the courts of other states are adduced in its support. But we do not deem it necessary to enter upon the inquiry.

The judgment of the circuit court will be reversed and that of the common pleas affirmed.

Reversed.  