J. B. Hirshfeld & Co. v. Evans

93 S.W.2d 148, 127 Tex. 254, 1936 Tex. LEXIS 315

• Court: Texas Supreme Court
• Decided: April 22, 1936
• Docket: No. 6482.
• Status: Published

Opinion

Mr. Presiding Judge RYAN

delivered the opinion of the Commission of Appeals, Section B.

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.