France v. France

BENSON, J.

The demurrer should have been sustained. The decree upon which the action is founded! is made a part of the complaint, and it appears therein, that it ordered this defendant to pay the “joint indebtedness mentioned herein,” and none is specified. It is very doubtful as to whether or not it is permissible to look elsewhere for such obligations, since there is nothing ambiguous or obscure in the language of the decree, but a total absence of the necessary specification, and it is beyond the power of the court to add to the decree. It further appears from the allegations of the complaint, that the Poinsett note is not a joint indebtedness. The defendant never signed the note and it is not a joint obligation. Bouvier’s Law Dictionary defines joint debtors as “two or more persons jointly liable on the same debt.” In 2 Words & Phrases, 2d Series, we find a joint obligation defined as “one by which several obligors promise to the obligee to perform the obligation.”’ Plaintiff urges, however, that since the money obtained from Poinsett was expended in paying for family expenses, for which, under our statute, Section 7039, L. O. L., the husband and wife are equally liable, the note must constitute a joint indebtedness.

Holmes v. Page, 19 Or. 232 (23 Pac. 961), was an action against husband and wife, upon an account stated between the plaintiff and the husband. It was sought to hold the wife as a defendant, upon the theory that because the original debt was for family expenses, she was equally liable with her husband, but, as Mr. Justice Lord points out, the action is not based upon the original debt but upon the account stated, with which the wife had nothing to do, and therefore the plaintiff cannot recover.

In Dale v. Marvin, 76 Or. 528 (148 Pac. 1116, 1151, Ann. Cas. 1917C, 557), Mr. Chief Justice Moore, commenting upon the doctrine of Holmes v. Page, 19 Or. 232 (23 Pac. 961), says:

“A married woman would therefore not be liable on a promissory note executed by her husband to evidence the purchase price of the family expenses. This conclusion repudiates the doctrine pr omulgated in Frost v. Parker, 65 Iowa, 178 (21 N. W. 507), which case was decided after the enactment of Section 7039, L. O. L., and hence the rule so announced is not controlling in the case at bar. The statute referred to creates, as to the husband and wife, a personal liability which may be enforced in an action at law against them jointly or severally. If both have not joined in executing a promissory note, or assented to the accuracy of an account stated to evidence the value of necessaries purchased, a recovery can be had against the spouse who did not join in giving- or consenting to such memorandum only upon the original account of the goods sold and delivered.”

In the case at bar, the note does not even evidence debts for family expenses, but borrowed money, which plaintiff avers was subsequently expended for family expenses.

Under these authorities cited, we must conclude that the facts stated in the complaint do not permit a recovery. As to whether or not the plaintiff might recover in some other proceeding, we do not decide, for the question is not before us.

The judgment is reversed and the cause remanded to the lower court, with directions to enter an order sustaining the demurrer. Beversed and Bemanded,

Burnett, Harris and Bean, JJ., concur.