Opinion
No. 6482.
Decided April 22, 1936.
Married Women — Coverture — Removal of Disability.
The Legislature having the right to confer sole management, control and disposition of the wife's separate property on her, also has the right to prescribe the conditions under which it might be so conferred, and when a married woman wishing to engage in mercantile business has not complied with the statutory requirements regarding the removal of her disability of coverture, she cannot be held personally liable for goods purchased by her.
Error to the Court of Civil Appeals for the Seventh District, in an appeal from Hutchinson County.
Suit by J. B. Hirshfeld, Incorporated, against Mrs. A.D. Evans to recover the purchase price of certain goods, etc., purchased by her to replenish a stock of merchandise owned by her in her store at Borger, Texas, and which was alleged to be her separate property. The trial court sustained a general and several special exceptions to the petition and upon plaintiff's failing to amend rendered judgment dismissing the case. That judgment was affirmed by the Court of Civil Appeals ( 56 S.W.2d 683) and plaintiff has brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section B, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Both judgments affirmed.
E. D. Slough, of Amarillo, for plaintiff in error.
The enlarged power given to married women by the Acts of 1913, as now amended, enabled the wife without restriction, to contract in reference not only to her separate property but to that class of community property placed under her control and excluded from contracts of the husband, and this power includes the operation and management of a stock of merchandise, it being her separate property. Teague v. Burk, 3 S.W.2d 461; Levin v. Jeffers, 122 Tex. 83, 52 S.W.2d 81; Speer's Marital Rights, p. 363; 23 Texas Jur., p. 304.
No brief on file for defendant in error.
A complete statement of this case by the Court of Civil Appeals is reported in 56 S.W.2d 683.
The point involved is whether a married woman, not having complied with the provisions of Art. 4626, Rev. Stat., 1925, by obtaining an order of court, removing her disabilities of coverture and declaring her feme sole for mercantile and trading purposes, may be held personally liable for the price of goods purchased by her in the conduct of a store, on an allegation that the stock of merchandise was her sole and separate property.
The Court of Civil Appeals correctly held that a personal action cannot be maintained against her, where the petition fails to show compliance with said statute.
The Legislature having the right to confer sole management, control and disposition of the wife's separate property on her, had also the right to prescribe the conditions and restrictions, if any, under which that right may be exercised.
The circumstances under which the wife may become sole for mercantile and trading purposes, being prescribed, the rule of implied exclusion obtains. Arnold v. Leonard, 114 Texas, at p. 540, 273 S.W. 799. An order of the district court is required before she can be treated in law, as a merchant or operator for mercantile and trading purposes, and her separate estate subjected to her obligations incurred as such.
The judgments of the trial court and Court of Civil Appeals are affirmed.
Opinion adopted by the Supreme Court April 22, 1936.