Neale v. Hermanns

Irving, J., delivered the opinion of the Court. This suit was brought by Johanna Hermanns, by her husband and next friend Lewis Hermanns, against the appellant, administrator c. t. a. of Margaretha Burger, deceased. The declaration contains the money counts for goods-bargained and sold; work and material provided; for money lent; for money paid for decedent; for money had- and received by decedent to plaintiff’s use ; and for money found to be due on accounts stated between them; and also a special count for washing and ironing done by the plaintiff for the deceased, and for services as nurse and attendant from 1st of October, 1872, to 31st of March, 1884-, Appended to the narr. is an account in which plaintiff claims from 1st of October, 1872, to April 16th, 1880, eighty-two weeks, at two dollars per week; and from April 16th, 1880, to 31st March,'1884-, two hundred and ten weeks, at five dollars per week. The seventh section of Article 45 of the Code «ays, “any married woman, who by her skill, industry and personal labor shall earn any money or other property, real, personal or mixed, shall hold the same, and the fruits, increase and profits thereof, to her sole and separate use, with power as a feme sole to invest, and re-invest, and sell and dispose of the same.” At common law the husband is unqualifiedly entitled to his wife’s services, and the profits of her labor.

By this section of the Code a married woman may engage in business independently of her husband, or may, apart from him, do any kind of work or labor on her own account and for her separate benefit, so that the proceeds of ⁴⁷⁶ her business, and the wages of her labor shall become her '“ sole and separate property.” Eor the recovery and protection of such property she may, by other provisions of the Code sue by next friend. This suit proceeds on the theory that what is claimed is due to the wife as separate property, and the suit is brought by the husband as next friend. To recover, the plaintiff must show, that she was rendering the service sued for as an independent person, ■on her own account, and not conjointly with, or for her husband’s benefit. The first exception is to the admission of evidence, 'which it is claimed has no tendency to establish the plaintiff’s claim.

Issues have been joined upon pleas that the defendant was never indebted, and that the decedent was never indebted, and never promised as alleged; that the action ■did not accrue within three years before suit brought; and that the assets of the estate are not sufficient to pay all the decedent’s debts in full. To be admissible the testimony must tend to prove some one of these issues. The witness is Lewis Hermanns, (the plaintiff’s next friend and husband.) JBeing merely the next friend, he was “a nominal party only” to this suit, and competent under the Evidence Acts. The question is, do his statements tend to ■sustain the claim as made, or any of the issues framed.

Hermanns states that he rented the house from Mrs. Burger, the defendant’s testator, at thirteen dollars per month, ■and that Mrs. Burger was to move out and give him possession of the whole house ; but that she d'id not move ■out, and afterward agreed to pay him four dollars per month for the rooms she retained. He further states that .he paid her the rent for the whole house, and for two months she paid him for the rooms occupied by her; then ■she was taken sick, and when he went to pay the rent “she tell us she would pay us for good and well if we take care •of her ; I let the rent slip.” It is evident that this testi ⁴⁷⁷ mony can have no bearing on any of the issues unless it be the indebtedness; and we think it plain, that it does not tend to show, that Mrs. Burger contracted with the wife to do any thing for her,* or that the wife did render any service f&r her on her own account and independently of the husband. It tends to show that Mrs. Burger was to receive full pay lor house rent, and was to remain in it and be cared for by witness and somebody else, and that she promised witness to pay them well for such attention. It may be assumed that by “we” and “us” in his statement he means