Maulsby v. Byers

Irvine, J., delivered the opinion of the Court. In Sturmfelsz vs. Frickey and Wife, 43 Md., 569 , it was expressly decided that the Act of 1872, chapter 270, only provided for suits at law against a married woman upon such “ written contracts or agreements by the wife” as she might execute jointly with her husband, and did not authorize a suit at law against the wife upon a verbal ⁴⁴² agreement notwithstanding the husband may have joined with her in making such verbal agreement. As it is not claimed in the declaration, nor by the proof tendered, that any written contract or agreement was ever entered into by the appellees with the appellant, it is clear that under the case just cited no judgment could be rendered against Mrs. Byers. The appellant insists, however, that if judgment could not go against her, there was error in not allowing judgment against the husband.

In the case cited there was an unequivocal agreement or contract, by both husband and wife, by parol, and the husband being liable at law on his verbal contracts, though the wife was not, a judgment was properly rendered against him. Looking to the declaration in this case we find, that in no count, or part of it, is the husband alleged to have employed the plaintiff, or promised or agreed to pay anything. The plaintiff is alleged to have been engaged to perform professional services in respect to the separate estate of the wife for which she is alleged to have promised compensation. If is also alleged that the contract was made in the presence of the husband and that he assented thereto.

A simple assent on his part to the agreement of the wife, cannot be taken as a promise on his part, to pay for the services which were being engaged in the agreement, in and about the separate property of the wife. It is averred in the declaration, that the appellant had the custody of a ■certain mortgage to secure a large sum of money due Mrs. Byers as of her separate estate, and that the interest being overdue and unpaid, the wife by letter requested the appellant to proceed in equity against the mortgagor to procure a decree and collect the money secured by the mortgage; and that in pursuance of such written request of the wife in her letter,