The appellee Mrs. E. G. Kelsey, a married woman, instituted this suit against the Jefferson University, a corporation, Nick Dobbs, Andrew J. Priest, and J. H. Hill, to recover an indebtedness which she claims to be due her for furnishing meals and sleeping quarters for a squad of football players. Throughout the petition, it is alleged that she alone, as plaintiff, sustained the liability and damage, and that her husband was merely joined in the suit with her pro forma, without averring that he had abandoned her, or for any reason had refused to become a real party to the action.
The defendant Hill filed no special exception nor plea in abatement such as to challenge the sufficiency of the petition for the failure of the husband to be made a real party to the cause, relying on a general demurrer to raise the structural defects in the petition. The record does not reveal answers, if any, of the other defendants.
The court, in limine, overruled the defendant Hill's general demurrer, dismissed the defendant Dobbs from the suit, and, on trial, entered judgment in favor of the plaintiff Mrs. E. G. Kelsey, the defendants Jefferson University and Andrew J. Priest, and against the defendant Hill. Hill alone appeals.
On this appeal, for the first time, the appellant, in nomine, raises the question of the plaintiff, a married woman, to maintain the suit, admittedly to recover community property without the joinder of her husband as a real party at interest, and, too, without showing some ground which would authorize her to maintain the suit.
It seems to be the well-settled law in this state that a married woman cannot maintain a cause of action involving community property, without alleging some emancipation from her husband or without the husband joining with her as a real party. The husband alone can recover community liability and damage; thus the failure of the plaintiff to make him a party, or account for his absence, is fatal to her suit. And just as clearly is the denouement that, while the absence of the husband as a real party might have been raised by plea in abatement or special exception, the defendant is not relegated to that method of raising the issue, but could reach it just as effectively by general demurrer, suggestion of fundamental error on appeal, or otherwise; indeed it became the duty of the trial court itself to refuse to proceed to judgment whenever the omission came to its knowledge. Yellow Cab Baggage Co. v. Smith et al. (Tex.Civ.App.) 30 S.W.2d 697; National Life Accident Insurance Co. v. Casas et al. (Tex.Civ.App.) 36 S.W.2d 323; Houston Gas Fuel Co. v. Spradlin (Tex.Civ.App.) 55 S.W.2d 1086. Wherefore, the husband of Mrs. Kelsey not having been brought in *Page 1018 to the litigation in a manner required by law, his rights in the subject-matter of the suit have not been litigated by the joinder of himself pro forma; it follows, therefore, that the judgment must be reversed and the cause remanded to the lower court for another trial.
In view of another trial, we deem it advisable to heed another contention made by the appellant.
The suit, as disclosed in pleadings and proof, is based on an oral agreement made, on October 3, 1932, by one Nick Dobbs, for the plaintiff to furnish meals and sleeping quarters for 27 young men, members of a football team, at the rate of $1 per day each. The duration of the contract is not stated, therefore terminable at will by either of the contracting parties. The boys stayed at the plaintiff's home for about three or four weeks; and, during that time, room and board had accumulated to the amount of $524. The plaintiff then, as she had a right to do, terminated Dobbs' agreement and threatened to discontinue service and put the boys out of her house, if the amount then due was not paid to her. This information was furnished to Mr. Priest, and he, in turn, revealed it to Mr. Hill. Mr. Hill was interested in the welfare of the football team, being a director of the Jefferson University, under whose name the boys were playing. Whereupon, on November 3, 1932, Hill assured Mrs. Kelsey that the amount then due her for the meals and rooms for the boys would be paid; said, quoting from the testimony of Mrs. Kelsey, that "he would see that I got my money," and, on this assurance, the plaintiff continued the agreement to furnish meals and rooms, to the end of the football season. The evidence is undisputed that, during the latter agreement with Mr. Hill, Mrs. Kelsey was paid the sum of $300.
It is evident, we think, the judgment of the lower court against Hill was necessarily based upon the promise made by him to the plaintiff, as there is no evidence that Mr. Hill, prior to that time, had any other conversation whatsoever with the plaintiff. The only conversation Mrs. Kelsey claims to have had with Hill was after the boys had been with her more than three weeks in which she testified that Mr. Hill said "he would see that she got her money." This being true, if unsupported by any other consideration, the promise of Hill that "he would see that she got her money," due by Dobbs, would be secondary and collateral to the original liability of Dobbs, and would come clearly under the condemnation of the second subdivision of our statutes of fraud, as the agreement was not in writing. Article 3995, subd. 2, R. S. 1925. If, however, the defendant Hill absolutely and unconditionally promised plaintiff to pay for the meals and board then due by Dobbs in the event Mrs. Kelsey would continue the service to the boys, and not put them out of her house, to the end of the season, and the plaintiff, in sole reliance upon such promise, continued to furnish the service in accordance with her agreement, such promise would not come within the statute of frauds. The promise of Hill in the circumstances would be as creating an obligation on his part, independent of the obligation of Dobbs; therefore, an original and not a collateral undertaking and not within the purview of the statute.
So, on another trial, if the obligation of Hill to see that the plaintiff got her money due by Dobbs is based on some benefit then or thereafter inuring to Hill, and, in consideration of the promise, Mrs. Kelsey agreed to continue the service of furnishing meals and rooms for the boys to the end of the season, then, certainly, the acceptance, in light of the consideration, must be regarded as an original; and Hill's promise, though by parol, must be held as binding.
The judgment of the lower court is reversed and the cause remanded.