Duckett v. Jenkins

7 A. 263, 66 Md. 267, 1886 Md. LEXIS 103

• Court: Court of Appeals of Maryland
• Decided: December 17, 1886
• Status: Published

Opinion

Robinson, J.,

delivered the opinion of the Court.

The appellees, husband and wife, by power of attorney duly executed, appointed the appellant their attorney to represent them in the settlement of the estate of Mil burn Soper. This is an action of assumpsit by the appellant, against the appellees, to recover compensation for services alleged to have been rendered under the power of attorney, and the question is whether such an action will lie against the xoife. No such, action it is conceded could be maintained at common law, because a wife could not be sued in an action at laio, on her personal contracts.

(Decided 17th December, 1886.)

The question then is, whether it comes within the provisions of the Act of 1872, chap. 270, which provides that a married woman may be sued jointly with her husband in a Court of law, on any note, bond, contract or agreement, which she may have executed jointly with her husband. “Maybe sued on any note,” “contract” or “ agreement,” that is, the cause of action on which the suit is brought, must be a “note,” &c., made jointly with her husband-. Now the suit here is not brought on a contract or agreement made by the husband and wife. It is not brought on the power of attorney, which is a sealed instrument, but the action is one of assumpsit against the wife to recover a reasonable compensation for services rendered her, and the power of attorney is offered in evidence to prove that the services were rendered at her request. Such an action is not in our opinion within the terms of the Act of 1872. The power of attorney is an instrument revocable at any time by the parties who made it. If the appellant has in fact rendered any services under it, his remedy if any, is by a proceeding in a Court of equity against the separate estate of the wife.

Judgment affirmed.