Belser v. Tuscumbia Banking Co.

105 Ala. 514

• Court: Supreme Court of Alabama
• Decided: November 15, 1894
• Status: Published

Opinion

BRIOKELL, C. J.

At common law, husband and wife were incapable of contracting with each other, and of consequence were incapable of forming a partnership. This rule of the common law does not prevail in this State, if the wife has a statutory or equitable separate estate she is capable of charging by her contracts or engagements ; nor can it in any case be applied when partnership property or assets are involved, and there is not an effort to charge her personally with partnership contracts.—Yarbrough v. Bush, 69 Ala. 170; Rabitte v. Orr, 83 Ala. 185; Schlapback v. Long, 90 Ala. 525. The statute expressly authorizes husband and wife to contract with each other, subjecting their contracts to the rules of law as to contracts by and between persons standing in confidential relations, and inhibits the wife from becoming the surety of the husband. — Code, § 2349. Contracts between persons standing in confidential relations are not void; they are voidable only at the instance of the party injured, seasonably expressed; until avoided they are binding and operative. The relation of partners to each other is that of agency. As to all with whom they contract they are principals. There is no element of surety-ship in the relation.

The assignment devotes the partnership assets wholly and unconditionally to the equal payment of the partnership debts. It was executed by the wife in the partnership name by the direction- and with .the consent of the husband, and there is no room to dispute its validity. Let the judgment'be affirmed.