(dissenting).
Appellants, by their complaint, pleaded that the defendant, the Foster Co., was and is a copartnership and “that at all times hereinafter mentioned, the defendant T. D. Foster, Jr., was and now is the holder of the naked legal title, and The Foster Company is the equitable owner of that certain real estate” described in the complaint. Appellants tried their case on such theory, which theory made immaterial the marital status of T. D. Foster, Jr., and obviated the question of community property.
Respondents filed a general denial to the complaint. During the course of the trial it incidentally appeared that T. D. Foster, Jr., at the times in question, was a married man, but when respondents attempted to make direct proof of his marital status, appellants objected upon the ground that the marital status of T. D. Foster, Jr., at the time the contract of sale was entered into was not within the issues; and the court sustained the objection.
The trial court found that the Foster Company was not a copartnership but was merely a trade name; and the trial court specifically declined to rule whether or not the contract of sale was binding upon T. D. Foster, Jr., personally, for the reason that such liability was not within the issues formed by the pleadings or consistent with ihe theory upon which the cause was tried and said defendant had not been called upon or had opportunity to plead or advance any defense he might have thereto.
The majority opinion states that at the time the contract of sale was entered into' on February 20, 1950, the premises in controversy were not owned by respondents. It is true that formal deed to the premises was made to T. D. Foster, Jr., and Esther Foster, his wife, under date of June 5, 1950. However, the uncontradicted testimony of T. D. Foster, Jr., was that he acquired such premises prior to the execution of such contract of sale. He testified as follows:
1 “Q. And where did you — when did you buy this land Mr. Foster? A. Which land, block 7, the last five homes ?
“Mr. Foster: Yes.
“A. Acquired it from Mr. Goold. ■
“Q. When, approximately when? Á. Approximately the first ,of, well let’s see, right around the first of January, 1950, I believe about then.”
The majority opinion holds that the evidence shows a personal liability on the contract of sale on the part of T. D. Foster, Jr., but ignores the fact that the evidence also shows that the property was acquired during coverture and is presumed to be community-property.
The majority opinion directs the entry of judgment for specific performance. This court has repeatedly held that under the provisions of Section 32-912, I.C., a *539contract for the sale of community real ■estate not signed and acknowledged by the wife, is unenforceable and void. Coppedge v. Leiser, 71 Idaho 248, 229 P.2d 977, and cases cited. In Childs v. Reed, 34 Idaho 450, 202 P. 685, a judgment on such a contract of specific performance or in lieu thereof damages, was held to be in excess of the trial court’s power and void. The court said, 34 Idaho 455, 202 P. 686:
“Appellant’s ability to perform his contract, so far as the conveyance of their community property was concerned, depended upon securing his wife to join with him in executing and acknowledging the deed. It was formerly the practice in England in such a case for the court to order the husband to procure his wife’s consent, and to imprison him until he succeeded. It is now held that performance is impossible, and therefore will not be decreed (Pomeroy on Specific Performance, § 295, note; 2 Pomeroy on Equitable Remedies, § 756, p. 1272), and that the husband ought not to be put in a position by a court of equity to tempt him to coerce his wife to join him in a deed (Barbour v. Hickey, 2 App.D.C. 207, 24 L.R.A. 763).”
In the instant case, the wife neither signed the contract of sale nor is a party to this suit. In my opinion the decision of the majority in ordering specific performance is directly contrary to the holding in the Childs case and, in effect, overrules the same.
The majority opinion further orders that if specific performance cannot be had, damages be assessed for defendants’ failure or inability to perform the terms of the contract of sale. In the Childs case the court stated that it was not deciding whether an action at law for damages for a breach of the contract could be maintained. This right to damages is granted in the instant case without pleading, proof or briefs on the question of such right.
I am of the opinion that if the judgment of the trial court is to be reversed, then the cause should be remanded with directions to permit the parties to amend their pleadings if they so desire, to interplead on the issue of personal liability under the contract on the part of T. D. Foster, Jr., for specific performance or damages.
I am authorized to say that THOMAS, J., concurs in this dissenting opinion.