The majority opinion states that the allegations of the complaint in McFarland v. Johnson, 22 Idaho 694, 127 P. 911, and the case at bar are substantially the same, then indicates that McFarland v. Johnson, supra, is not applicable herein because, there a nonsuit was granted in favor of the wife. The nonsuit was sustained, however, not because the complaint was deficient, but because there was no evidence showing the contract had been made for the benefit of the sole and separate estate of the wife. The court, so far as the allegations of the complaint are concerned, expressly ruling otherwise. The first ground in the motion for nonsuit was:
"The evidence introduced by plaintiff shows that the payee in the alleged note sued upon and the alleged maker thereof, the defendant herein, were at the time the said alleged note is alleged to have been executed husband and wife of each other respectively, while it is not alleged, and plaintiff has not offered to prove or offered any proof to show that said note was executed and the obligation thereof incurred for the use and benefit of her separate property or contracted by her for her own use and benefit . . . .
"Referring, now, to the complaint, we find the complaint does not in any way allege that the respondent is a married woman, or was at the time the note in controversy was executed the wife of John Adolph Johnson. From the complaint alone we cannot presume that Sarah S. Johnson was a married woman at the time the note was executed and delivered. There is no allegation which shows she was not competent to make the contract upon which suit is brought. The complaint was not defective or subject to demurrer, upon failure to allege that the respondent and payee of the note were husband and wife. . . . ."
The court then announces and adopts the rule laid down inBank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497, that a married woman cannot bind herself personally for the payment of a debt which was not contracted for her own use or benefit or for the use or benefit of her separate estate, but that she can make such contracts where *Page 89 the liability was originally the debt of the wife or contract with reference to her separate property, and continuing:
"Applying that rule to the facts of this case, if theevidence shows that the execution of the note sued upon was contracted with reference to the separate property or estate of the respondent, then the court erred. On the contrary, if the evidence does not so show, then the order of the trial court was properly sustained."
The court then reviews the evidence and sustains the action of the court in granting a nonsuit because the evidence did not show that the contract was made for the use and benefit of the separate estate of Mrs. Johnson. The cases cited in the majority opinion laying down the rule that it must be alleged and proved that the contract was made for the use and benefit of the wife or for the use and benefit of her separate estate, did not consider the kind of a complaint in the case at bar or the kind of a complaint in McFarland v. Johnson, supra.
In the instant case there is no question that the instructions properly told the jury, following the law as announced in the previous cases, that unless they found that the debt was contracted for the sole and separate estate of appellant, respondent could not recover. The pleadings in the first instance were in the justice court and the statute expressly provides that they are to be construed liberally. If the complaint had alleged that respondent was a married woman then it would also have been necessary to have alleged that the contract was for the benefit of her sole and separate property; since, however, the complaint did not allege that she was a married woman the rule announced in McFarland v. Johnson,supra, applies, and to reverse this case and send it back for further proceedings merely because the complaint did not set up an issue, which issue, however, was before the jury without objection as to the sufficiency of the pleadings in connection with the admission of the evidence, is hypertechnical in the extreme. No prejudice whatever was shown nor could prejudice be shown to the appellant, because the issue was before the jury. As stated in McFarland *Page 90 v. Johnson, supra, the complaint upon its face stated a cause of action and was not subject to demurrer. The issue of coverture and its attendant features was raised by general denial if raised at all.
The issue was fully presented to the jury upon conflicting evidence, which if uncontradicted would have supported the verdict, which the jury found against defendant's contention. No rule of pleading or practice or any proposition of substantive law would be violated by sustaining the judgment of the lower court, which should be done. I therefore dissent from the majority opinion.