Smith v. Smith.

may consist of lands or chattels." Fireman's Ins. Co. v. Bay, Barb. (N. Y.), 409.

In a number, perhaps in all, of the States, statutes enlarging or conferring additional rights upon married women have been adopted. The statutes enlarge their powers over property and give remedies for its protection. In considering and in giving effect to the word "property," the Courts are divided, but generally agree that the various enactments will not give a wife the right to sue her husband for a personal tort by implication, but this right must be expressly conferred. Strom v Strom, 116 Am. S. R. 387.

The term property does not include a right of action in tort. Gibson v. Gibson, 43 Wis. 23. In Heyman v. Heyman, 19 Ga. Appeals 684, a wife entered an action against her husband to recover damages caused by the negligence of her husband, and it was held that the statute enlarging her rights did not confer the right to sue her husband for

a tort.

The rule, as stated in 21 Cyc. 1519, is that neither under the rules which obtained at common law nor generally under the provisions of the various statutes can the wife maintain an action against her husband for his torts to her person or character. To the same effect is Schultz v. Schultz, 89 N. Y. 644; Main v. Main, 46 Ill. Appeals 106. Citing Peters v. Peters, 42 Iowa 182, and other cases.

In Mink 2. Mink, 16 Pa. C. C. 189, a wife brought a suit against her husband for slanderous words uttered by him after she had been forced to withdraw from her home. She brought herself within the exception of the Act of 1893, but the Court held that the Act did not give the right to sue her husband for slander.

The Act of 1913 provided a wife with a remedy at law against her husband while living with her for any invasion of her property rights. The objects and purposes of the enactment and "the tendency of the legislature has been to invest her with the absolute control of her separate property untrammeled with any clogs or fetters imposed under the common law." Heckman v. Heckman, 215 Pa. 208.

The limitations upon a right of action for the protection and recovery of her separate property were removed, but the right to sue for damages resulting from torts committed by her husband during coverture is not expressly given, nor is it necessary, in order to give effect to the statute, that the language used be so construed as to give her that right. The intention of the legislature was not to change the law governing the relations of husband and wife as between themselves except as might be necessary for the protection of her separate property.

Holding that the Act does not confer the right to sue her husband for a tort, we are of opinion, is in harmony with the language used and consistent with the purposes for which the statute was enacted.

ORDER.-July 15, 1919: After argument and on consideration, being of opinion that the plaintiff cannot sue her husband for a tort committed during coverture-the question of law raised by the affidavit of defense and that the decision of that question disposes of the whole of plaintiff's claim, it is ordered that judgment be entered for defendant and against the plaintiff.

Court of Common Pleas of Lancaster County

Galvin v. C. F. Bowman & Co. (No. 2).

Real estate-Option to buy-Damages-Agency-Assumpsit.

In an action of assumpsit founded on an option to purchase real estate given to the plaintiff by the defendant as agent, as alleged, without proper authority from the principal, and which contained no time limit for its consummation, the plaintiff, having rescinded the contract, can only recover the amount paid under the option, and cannot recover damages, though averring tort and breach of contract in his statement. The suit was properly brought against the agent and not against the principal in so far as the recovery of the payment is concerned, although there was no concealed agency. The agent would not be liable for this amount, however, if he had paid it over to the principal before the suit.

Rule to strike off judgment of non-suit.

J. Andrew Frantz and B. F. Davis, for rule.
Willis G. Kendig and John E. Malone, contra.
January 17, 1920. Opinion by LANDIS, P. J.

Alice M. Nabors was the owner of a house and lot of ground, located in the City of Lancaster. She placed it for sale in the hands of the defendants, C. F. Bowman & Company, who are real estate agents in this city. On February 7, 1919, the plaintiff called at the office of this firm, and, in an interview with Mr. Bowman, asked him if he would give her an option on this real estate for fifteen days. "He said he could, and she then went to the office of her counsel, who prepared the following paper, which was subsequently signed by Mr. Bowman:

'In consideration of One Hundred Dollars, the receipt whereof is hereby acknowledged, the undersigned, agent for the owner of the real estate situated at 139 E. Chestnut Street, Lancaster, Pennsylvania, offers to sell the said property for the sum of five thousand ($5000) dollars, and to have such offer continue and remain open for a period of 15 days from the date hereof, to Mrs. Susie Galvin, the offeree. It is understood that if the sale of the aforesaid property is consummated within the aforesaid time, then the aforesaid option money shall be considered a part payment of the purchase price.

"In testimony whereof, I hereby set my hand and seal this 7th day of February, 1919.

"Witness:

"W. B. HOAR."

"C. F. BOWMAN & Co., Agents for

Thereupon, Mrs. Galvin paid to Mr. Bowman the sum of $100.00. On the evening of the next day, Saturday, February 8, W. B. Hoar, a salesman in the office of Bowman & Company, called upon the plaintiff and told her that he wanted an agreement to send to Mrs. Nabors, so that he might get it back before the option expired. He testified on the trial that he had not been authorized by his employers to do this,

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Galvin v. C. F. Bowman & Co. (No. 2).

but that he went of his own accord. He had heard that another agent had the property for sale and had a prospective buyer, and that was the reason he went to see Mrs. Galvin about it. He wrote the agreement in her apartments and at her dictation. It was written between Alice M. Nabors and Susan Galvin, and the terms of payment were fixed at $100.00 on the signing of the agreement, $400.00 on or before February 22, 1919, and the balance, $4,500.00, on or before April 1, 1919, on delivery of the deed. Mrs. Galvin at this time signed it, and it was then sent to Mrs. Nabors, who refused to execute it, and it was subsequently returned.

On February 21, 1919, Mrs. Galvin gave to J. A. Frantz, Esq., her attorney, the sum of $400.00, with instructions to go to C. F. Bowman & Company and exercise the option. Mr. Frantz at once went to the office and tendered to Mr. Bowman the $400.00 in legal currency. Mr. Bowman refused to receive the money, saying that there was some trouble about the property, that it had been sold to some one else. He, however, added that Mr. Kendig, his partner, was Mrs. Nabors' counsel, and that they would be able to put the deal through, and he subsequently told Mr. Frantz that it would come out all right. That same afternoon, Mr. Frantz had an interview over the telephone with Mr. Kendig. He was told by Mr. Kendig that he would have to tender $4,900.00, to which Mr. Frantz replied that the option expired the next day, which was a holiday, and that he could not get the money and would not make the tender. The next day he again tendered the $400.00, with the same results. On March 7, 1919, he was instructed by Mrs. Galvin to throw the whole thing up, and thereupon he wrote a letter to that effect, and demanded of the defendants $1,500.00 damages. On March 10, 1919, this suit was brought.

The action is in assumpsit, and in her statement the plaintiff avers that the defendant had no authority to give a fifteen-days' option for the premises, and that the agents, by artifice and fraud, represented to the plaintiff that they had authority to give such an option, provided she would pay $100.00 for the same. The ground upon which she rested her case was, that Mrs. Nabors only conferred on the defendants a general authority to sell, and, consequently, the agents had no right to give the plaintiff an option on the property for fifteen days. On the trial, under the above recited proof, we entered a judgment of non-suit, which we are now asked to take off.

The statement as filed seems to contain elements of a breach of contract and also of a tort. Assuming, however, that it is rightly brought and that the statement is sufficient in form, we are of the opinion that, in view of the rescission of the contract, the utmost that can be recovered is the money that was paid. It was so stated by the Court to counsel on the trial, and an examination of the authorities has not changed our opinion in that respect.

In Stickter v. Guldin, 30 Pa. 114, it was held that, "if a vendee tender performance of his contract, at the time appointed, and the vendor be unable to perform his part of the agreement, the former may elect to rescind the contract, and maintain an action to recover back

Galvin v. C. F. Bowman & Co. (No. 2).

any money paid on the footing of the agreement"; and in American Life Insurance Company v. McAden, 109 Pa. 399, that, where one party to a contract under seal refuses without right to perform his part, the other party may elect either to sue on the contract to recover damages for the breach, or to rescind the contract and sue in assumpsit, to recover back money paid under the contract for which he received no substantial benefit." Again, in Kerns v. The Prudential Insurance Co., 11 Sup. 209, it was aid that, when one party to a contract refuses without right to perform his part, the other party may elect either to sue on the contract to recover damages for the breach, or to rescind the contract and sue in assumpsit to recover back the money paid under it." See, also, Ellis v. Alta Friendly Society, 16 Sup. 607; Moorhead v. Fry, 24 Pa. 37; Stitzel v. Kopp, 9 W. & S., 29; Borough of Erie v. Vincent, 8 W. 510. The plaintiff could have done one of either of the above things. She could have sued to recover damages for breach of the contract, or she could have sued in assumpsit to recover back the money paid under it; but, after she had rescinded the contract, she was limited to the recovery of the money paid on account of it, and could not recover damages for its breach.

An examination of the option shows that no specific time was fixed therein for the consummation of the agreement. It was not, therefore, necessary, all other things being correct, to tender the balance of the purchase money on or before February 22, 1919; though she was bound to exercise and give notice of her acceptance of the option within that period. Markley v. Godfrey, 254 Pa. 99. Therefore, a notice of the acceptance of the option was sufficient, and the plaintiff was entitled to a reasonable time thereafter to complete the sale. But again comes in the question of rescission, which obviates a further discussion on this point.

It is not denied that the defendants were authorized by the owner as agents to sell this real estate. What is claimed is, that they had no right to grant the plaintiff's request for an option for fifteen days. On the face of the paper, Mr. Bowman signed for the defendants as agents, and therefore there was no concealed agency in the case, nor was any deception practiced upon the plaintiff. It is, therefore, urged on the part of the defendants that they were acting purely in a representative capacity, and the action should have been brought against their principal and not against them. Generally speaking, this would be true, if the defendants had not received the payment on account of the option, and, so far as the evidence reveals, up to this time retained it. The agents, however, could not be liable for a greater amount than the principal would have been liable for on a rescission of the contract, and therefore under no circumstances could the plaintiff recover from them a larger amount than that which she actually paid. On the trial, looking at the conclusion of the statement, we were of the opinion that there was no evidence to sustain the claims therein made; but we inadvertently overlooked paragraph 19, where, among others, the claim was made for the $100.00 "down money". This could be recovered in an action of assumpsit, for, as has been stated, the defendants received and, so far

Galvin v. C. F. Bowman & Co. (No. 2).

as we know, now retain that sum. For this reason, we think the jury should have determined whether or not this $100.00 was due by the agents. If, before suit, they had paid it over to their principal, they are not now responsible for it. Kurzawski v. Schneider, 179 Pa. 500; Gable v. Crane, 24 Sup. 56. To correct this error, and for this purpose alone, we propose to make absolute this rule and to take off the judgment of non-suit, and this is now accordingly done.

Rule made absolute.

Superior Court of Penusylvania

Morrison v. Altland, Appellant.

Landlord and tenant-Farm lease on the halves.

Where a farm lease "on the halves" stipulates that no hay or straw could be removed from the farm without the consent of the landlord, it was competent for the tenant, at the termination of the lease, in a suit involving his right to one-half of the excess hay and straw, to testify that when the lease was executed, the landlord had said that he was to have half of the excess hay and straw. This evidence, if believed, constituted a consent under the terms of the lease and was not a contradiction or variation thereof, as the half of the hay and straw belonged to the tenant under the lease, subject to the landlord's consent to its removal.

Evidence of a conversation to the same effect prior to the time of the execution of the lease is admissible as corroborative of the subsequent oral agreement.

Appeal No. 92 of October Term, 1919, by the defendant, Robert F. Altland, from judgment of C. P. of Lancaster Co. on a verdict for the plaintiff, D. C. Morrison. Reversed.

Suit by landlord under farm lease and set-off claimed by tenant. Verdict for plaintiff for $199.79 and judgment thereon.

Error assigned was the refusal of the court to allow certain testimony relative to the alleged verbal consent by the plaintiff as to the division of the excess hay and straw remaining on the farm.

For opinion of court below on rule for a new trial, see 36 LAW REVIEW 65.

John A. Coyle, for appellant.

A parol agreement is admissible in evidence which induced the signing of a written agreement.

Federal Sales Co. v. Farrel, 264 Pa. 149.

Morrish v. Morrish, 262 Pa. 192.

The rejected evidence was in fulfilment of the written lease, not in contradiction of it.

Mace v. Wilson, 49 Pa. 378.

Prior declarations of the person making the cotemporaneous agreement were admissible in corroboration thereof.

Croyle v. Cambria L. & J. Co., 233 Pa. 310.

Under the lease the hay and straw did not belong solely to the plaintiff, as the court seemed to hold, but half to the defendant, as the lease was on the halves.

Mace v. Wilson, 49 Super. Ct. 378.