
    Hays v. Jordan & Company.
    1. Under the married woman’s act of 1866, a contract made by a wife who has no separate estate, whether executed or executory, is binding upon her, as it would be if she owned property at the time of her marriage or afterwards acquired it by gift or inheritance ; the intent being to confer upon her the same rights and privileges as to acquiring property that she had before marriage, and the power to contract necessarily following with the power to hold in her own right property given to or inherited by her.
    2. Where notes, each forming part of the same contract, provide that “ the piano for the use of which this note is given is and shall remain the property of ” the promisees, “ and in default of payment the i^aid piano shall be returned to them or their agent in good order, and they or their agent are authorized to take possession of the same without process of law”; and “ on payment of this note (given for the use of this piano), a bill of sale will be given and title of the same passed to the lessee, but until then the title to the piano shall remain in ” the promisees; and the aggregate amount of the notes is made payable within six months from the date of the transaction, and is the stipulated value of the piano and the consideration for the bill of sale to be given when the full amount is paid, the contract is not a lease but a conditional sale with title reserved in the vendors until the purchase price is paid. Where, after payment of one of the notes and default in subsequent payment, the vendors bring bail trover and elect to take the piano under the code, 23564, before they can recover it they must return the amount paid them, after deducting a proper sum for the use of the instrument if such use was of any value to the defendant ; such sum with interest to be found by the jury from the evidence, and the piano to be returned to the plaintiffs upon payment to the defendant of this sum, judgment for which can be entered by the court for the defendant upon (the bond of the plaintiffs, given by them on taking possession of the property.
    July 28, 1890.
    Trover. Contracts. Leases. Sales. Married women. Practice. Equity. Yerdict. Before Judge Guerry. Early superior court. October term, 1889.
    Reported in tbe decision.
    R. H. Powell, for plaintiff in error.
    John R. Irwin, contra.
    
   Simmons, Justice.

Jordan & Co. sued Mrs. Sudie Hays in bail-trover for an “ opera piano,” alleged to be of the value of $350, and also, in the same action, sued her upon an alleged in debtedness of $35 attorney’s fees. The piano was seized by the sheriff, and Mrs. Hays having failed to give the bond required by law to retain the same, the plaintiffs gave bond and took possession of the piano. Mrs. Hays filed three pleas: (1) tliat at tlie time slie made the contract with the plaintiffs she was a married woman and had no separate estate, and for this reason the contract is void as to her; (2) that when the piano was purchased, Jordan & Co. warranted the same to her for five years against any defects in workmanship, material or performance under fair usage. She claimed 'that there was a breach of warranty, for the reason that the keys of the piano were so arranged and constructed as to make them too tight and prevent the instrument from performing under fair usage, and that it is not a good, substantial and well-toned instrument, and that it was constructed so defectively as to allow mice to get into the keys and build nests therein. (3) The third ■was an equitable plea, in which she alleged that she gave to the plaintiffs her notes for the $350, bearing date August 4th, 1888, one being for $100 due October 1st, 1888, one for $150 due December 1st, 1888, and one for $100 due February 1st, 1889; and that she paid the first note when it fell due, but upon ascertaining that ■the piano did not come up to the warranty, she offered to return it to the plaintiffs if they would return the money she had paid thereon; aud that they refused to to do this. She prayed that, as they had elected to take a verdict for the return of the piano itself instead of a verdict for damages, she might have a judgment against them for the $100 which she had paid upon the piano. Upon the trial, the jury, under the charge of the court, returned a verdict in favor of the plaintiffs for the piano. The defendant made a motion for a new trial ■on the several grounds therein set forth, which was ■overruled, and she excepted.

The 3d ground of the original motion and the 4th of the amended motion, may be treated together. The defendant requested the court to charge the jury as follows: “If you should find from the evidouce that the plaintiffs and the defendant made a contract for the piano sued for, and if you further find that at that time the defendant was a married woman, and that she had no separate estate, then her contract would be void and plaintiffs cannot recover in this case. . . She can neither contract nor be contracted with during her marriage, and if during her coverture she become possessed of property in which she has no title, her possession by operation of law would become that of her husband; and for this reason plaintiffs cannot recover of defendant in this case.” This the court refused to give, and, on the contrary, charged that a married woman is bound by her contracts whether she has a separate estate or not.

On this proposition there is great conflict or diversity of opinion among the courts of different States. But this conflict arises from the different phraseology of the statutes, no two of the acts being alike, and the court in each case having construed the act of the legislature of its own State. See Harris on Married Women, where the decisions of the different courts are collated. Our own statute upon the subject is somewhat different from that of any other State, and this is the first time that the question here made has come squarely before us. We must construe the act according to what we consider to be its true meaning and the legislative intent. The language of the act of 1866, as found in section 1764 of the code, is as follows : “All the property of the wife at the time of the marriage, whether real, personal or choscs in action, shall be and remain the separate property of the wife; and all property given to, inherited or acquired by the wife during coverture, shall vest in and belong to the wife and shall not be liable for the payment of any debt, default or contract of the husband.” This act was in substance incorporated into the constitution of 1868 (art. 7, sec. 2), and also into that of 1877 (Code, §5087). It will be seen that it declares that “all property given to, inherited or acquired by the wife during coverture, shall vest in and belong to the wife,” etc.

It is clear from the terms of the act that all the property the wife had at the time of her marriage and all property given to or inherited by her thereafter, belongs to her just as if she had never married; and we think that, under the same statute, all that she may thereafter acquire besides that which is given to or inherited by her, belongs to her in like manner'. We think the intention of the legislature and of the framers of the constitution, in the use of the word “acquired,” was to confer upon the wife the same rights and privileges as to acquiring property as she had before marriage. The law having thus given her the power to hold in her own right property given to or inherited by her, free from her husband and without the intervention of a trustee, it gave her necessarily the power to contract and be contracted with. If she contracts and makes a profit, the profit thus acquired belongs to her ; if she loses, the loss falls upon her. If the law deals thus generously with wives who were so fortunate as to own property at the time of marriage, or who have received or inherited property since, why will it not so deal with all wives ? Why should it exclude one who had nothing at the time of her marriage, and who has since received and expects nothing by way of gift or inheritance ? Why should she not be allowed to make a contract whereby she may acquire property? Why may she not be allowed, especially if she has an improvident husband, to contract and acquire property for the support of herself and her children ? In our opinion, there can be no doubt that if a woman has property at the time of her marriage, or afterwards acquires it by gift or inheritance, she has all the rights we have mentioned; and we can see no good ■reason to hold that the same rights were not conferred upon the wife who had. nothing at her marriage and has .acquired nothing by gift or inheritance since. The legislature, in our opinion, intended to put all wives .upon»the same footing in regard to contracts and ac■quiring property, and intended to allow them to make contracts whether they have separate estates or not, and to make these contracts binding whether executed or ■executory. A man can make a contract whether he has an estate or not. Why not allow a married woman to do the same? No one can possibly be injured. If she makes a contract, the other party can easily ascertain whether she has a separate estate or not; if she has ■none, the other party need not make the contract. If he does make it, he takes the risk just as he would if he were contracting with a man who had nothing. lie takes the risk of being able to enforce it. While this court has not heretofore decided this question squarely, the trend of our decision since the act of 1866 has been in this direction. We think, therefore, that the court ■did not err in refusing the request and in charging as ■complained of in this ground of the motion.

The second ground of the amended motion complains that the court committed error in charging as follows: “ If the plaintiffs sold the piano here sxxed for to the defendaxxt, and retained the title in themselves until the notes given therefor were all paid, and if thex’e yet remains any part of said purchase money unpaid after deducting from the pi’ice to be paid the amount paid by defendant, and the damage sustained by defendaxit by reasoxx of axxy defect in said piaxio or failure of plaintiffs’ wárranty on said piano, you will find for plaintiffs the piano hex»e sued for.” This charge, under the pleadings and the eviderxce in this case, we think was erroneous. We presume the coux-t was led into error by construing the contract betweexx the pax»ties as a lease and not as a conditional sale. The note -which, the defendant paid and which, except as to date .and amount, is identical with the others, each of them forming part of the same contract, contains the following stipulations:

“•§100. Early Co., Ga., August 4, 1888.
I promise to pay J. Jordan & Co. or bearer one hundred dollars for value received, for the rent of their ‘ Opera Piano,’ Style 8, No. 11540, at the office of John T. Navis & Son, Columbia, Ala., in the following instalments, to wit: One hundred dollars on the 1st day •of October, 1888. The makers and sureties . . agree that if collected by an attorney by or without suit, the fees of such attorney shall be added and paid by the said makers and sureties and may be included in any judgment that may be rendered against them on said note. It is agreed and understood . . that the piano for the use of which this note is given, is and shall remain the property of J. Jordan & Co., and in default of payment the said piano shall be returned to them or their agent in good order, and they or their agent are .authorized to take possession of the same without process of law. On payment of this note (given for the use of this piano), a bill of sale will be given and title •of the same passed to the lessee; but until then the title to the piano shall remain in J. Jordan & Co. [Homestead, etc. waived.]
(Signed) Sudie Hays (Seal). -
“ Attest: J. H. Simonton.
“ Purchaser’s P. O. Address : Cedar Springs, Ga.
“ Recorded in Book C, Mortgages,” etc.

The court below must,have regarded the §100 paid by the defendant, under this note, as in the nature of rent for the use of the piano for the two months during which she had held it, and as lost to the defendant in the event of her failure to pay the remainder of the amount agreed upon. Although the contract does use the term “ rent” and states that the notes are given for the use” of the piano, we do not so construe it, but regard it, not as a lease or renting, but as a conditional sale with title reserved in the vendor until the purchase price is paid. Guilford, Wood & Co. v. McKinley, 61 Ga. 232. The entire $350 styled “ rent” is made payable within six months from the date of the transaction, and is the stipulated value of the piano and the consideration for a bill of sale to be given when the full amount is paid ; and the sale of the piano, and not the renting thereof, is evidently the real end and basis of the contract. The Supreme Court of the United States, in passing upon a similar contract, say: “Nor is the transaction changed by the agreement assuming the form of a lease. In determining the real character of a contract, courts will always look to its purpose, rather' than to the name given it by the parties.” Hervey v. R. I. Locomotive Works, 93 U. S. 672. Mr. Justice Davis, in the opinion, cites Murch v. Wright, 46 Ill. 487, s. c. 95 Am. Dec. 455, in which it was held, as to a contract of this character, “that it was a mere subterfuge to call the transaction a lease,” and says: “ It is true the instrument of conveyance purports to be a lease, and the sums stipulated to be paid are for rent; but this form was used to cover the real transaction, as much so as was the rent of the piano in Murch v. Wright. There the price of the piano was to be paid in thirteen months, and hero, that of the engine, . . in one year. It was evidently not the intention that this large sum should be paid as rent for the mere use of the engine for one year. If so, why agree to sell and convey the full title on the payment of the last instalment In both cases, the stipulated price of the property was to be paid in short instalments, and no words employed by the parties can have the effect of changing the true nature of the contracts.” The courts now uniformly hold that such contracts are not leases, but are conditional sales. It was so held where parties expressly contracted that “no agreement of sale of said pianoforte is implied.” Gerow v. Castello, 11 Col. 560, s. c. 7 Am. State Rep. 260. See also Miller v. Steen, 30 Cal. 402, s. c. 89 Am. Dec. 455; Singer Mfg. Co. v. Cole, 4 Lea (Tenn.), 439, s. c. 40 Am. Rep. 20; Knitted v. Cushing, 57 Tex. 354, s. c. 44 Am. Rep. 598; Loomis v. Bragg, 50 Conn. 228, s. c. 47 Am. Rep. 638; Singer Mfg. Co. v. Graham, 8 Oreg. 17, s. c. 34 Am. Rep. 572; Lucas v. Campbell, 88 Ill. 447; Green v. Church, 13 Bush. (Ky.) 430; Gerrish v. Clark, 13 Atl. (N. H.) 870; Gorham v. Holden, 9 Atl. (Me.) 894; Curran v. Knapp, 117 Mass. 324; Carpenter v. Scott, 13 R. I. 477; Sage v. Sleutz, 23 O. St. 1; Singer Mfg. Co. v. Holcomb, 40 Iowa, 33; DeSt. Germain v. Wind, 13 Pac. (Washington), 753; Whitcomb v. Woodworth, 54. Vt. 544; Hintermeister v. Lane, 27 Hun (N. Y.), 497.

The contract being, then, a conditional sale and not a lease, and the payments made thereunder not rent but purchase money, the plaintiffs have no right to retain them as rent. And there is no express stipulation that they shall be treated as a forfeiture. “ Forfeitures are abhorred in equity and are never favored in law,” and provisions for forfeiture are regarded with disfavor and construed with strictness, when applied to contracts and the forfeiture relates to a matter admitting of compensation ’ or restoration. Where adequate compensation can be made, the law in many cases and equity in all cases discharges the forfeiture upon such compensation being made. .The law inclines’to remedy breach of condition by damages rather than by forfeiture. Code, §2295; Story Eq. Jurisp. §§1312, 1314, 1316 et seq. “ On sale reserving title till the price is paid, many of the cases hold that partial payments are forfeited on default of the residue; but in courts possessing equity power's, the modern tendency is to allow the seller who rescinds a contract for default after receiving part of the price, to retain only so much as will compensate Mm.” Newmark on Sales, §306; Preston v. Whitney, 23 Mich. 260, 267; Johnson v. Whittemore, 27 Mich. 463, 470. In this case, under the practice in this State, it was within the power of the court to mould the verdict so as to do full justice to the parties, and in the same manner as a decree in equity. Code, §§3562, 3082; Acts 1884—5, p. 36; Acts 1887, p. 64. Although the plaintiffs elected to take the piano and not to take a money verdict for damages, as they had a right to do, under section 3564 of the code, yet we do not think that they were entitled to recover the piano and retain all the money received from the defendant. We think that, under our law, the court should have instructed the jury to so mould their verdict as to do justice to all parties; and should have instructed them that if the plaintiffs elected to take the specific property, and a part of the purchase mouey had been paid, the plaintiffs were entitled to recover the property itself, but before they could recover, they must return the money which the defendant had paid them, after deducting a proper amount for the use of the piano, if the use Was of any value to the defendant; which amount the jury should arrive at from the evidence, finding- the balance, with interest, in favor of the defendant against the plaintiffs, the piano to be returned to the plaintiffs upon payment to the defendant of. the amount thus found. Where the plaintiff obtains possession of the piano by bail process, as was done in this case, the court can enter judgment for the amount found for the defendant upon the plaintiff’s bond.

The ruling here made is not in conflict with that in the ease of Guilford, Wood & Co. v. McKinley, 61 Ga. 230. In that case the plaintiffs elected to take a money verdict for the damages, and not a verdict for the property. This court held that they could recover the balance of the purchase money, after deducting what had been paid, and damages for breach of warranty. When the court said, in the latter part of the opinion in that case, that “ the plaintiffs had the right to recover it unless the balance of the price be paid,” the court meant that the plaintiffs had the right to recover the balance of the purchase money after deducting what had been paid and after deducting damages arising from defects in the piano, because the court adds : “ which payment may be in money or by showing that the piano was a faulty instrument and that the plaintiff had got all it-was worth, owing to its defects.” Judgment reversed.  