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the real party in interest, he was an assignor under the statute, and by reason of that fact was precluded from testifying to those matters equally within the knowledge of the deceased; and counsel call attention to the statute, & 10212, 3 Comp. Laws (5 How. Stat. [2d Ed.] $ 12856). Counsel cite and rely upon the case of Stackable v. Estate of Stackable, 65 Mich. 515 (32 N. W. 808), and later decisions to the same effect.
We have examined these cases, as well as some of the later ones, particularly In re Van Dyke's Estate, 171 Mich. 195 (137 N. W. 79); but, in our opinion, these cases are not controlling here, for the reason that the evidence in the instant case does not bring it within the rule contended for. As to the services rendered by the claimant prior to her marriage, claimant's husband would have no interest therein. It will be noted in the testimony that almost immediately upon the arrival of claimant and her husband from Grand Rapids, and before any definite arrangement had been made, the contract testified to by the husband was entered into between claimant and decedent, and that upon the same evening he consented to the arrangement and told his wife that she might have the fruits of her labor in that regard. We think that the case is governed by the doctrine of this court in Slack v. Norton, 111 Mich. 213 (69 N. W. 497). It was there held that a married woman is entitled to the benefits of a contract by which she furnished board and care to another, where all the supplies were provided by her and the arrangement was entered into and carried out with the consent of the husband; that in a proceeding by the wife to enforce such a claim against the estate of a decedent the husband is competent to testify to the arrangement made with the deceased, since he does not stand to the wife as assignor of the claim, and is therefore not within the statute prohibiting the assignor from testifying to matters which, if true, were equally within the knowledge of the deceased. In the lastcited case, LONG, C. J., speaking for the court, said:
"In the present case, the wife was permitted by her husband to keep boarders, furnished the provisions herself, and with which it is apparent the husband had nothing to do. In this respect it differed from the Stackable Case, and the husband was a competent witness to show that this was the wife's business, and not his own. It is not an action upon an account brought by the wife which has been assigned to her. It is a claim with which the husband had nothing to do, if his testimony given in the case is to believed. The husband did not stand towards the wife as the assignor of the claim, and therefore was not prohibited by the statute from testifying to any arrangement which the wife made with the deceased for his board and care.
It has been decided many times in this court that a married woman, with the consent of her husband, may carry on business on her own account, and may be protected in the results thereof, against him and against his creditors, to the same extent as if she were unmarried”—citing Tillman v. Shackleton, 15 Mich. 447 (93 Am. Dec. 198) · West v. Laraway, 28 Mich. 464.
We see no difference in principle between the instant case and the one from which we have above quoted. The whole arrangement from the time the parties left Grand Rapids to the time of the death of Mrs. De Spelder seems to have been with the assent and consent of the husband. We think the court did not commit any error in receiving this evidence, or in the manner in which it was dealt with.
2. This subject relates to the question whether Mrs. De Spelder, being a married woman, was competent to make the contract with claimant. It is the claim of appellant, as we understand it, that Mrs. De Spelder, being a married woman living in the home of her husband, was incapable of entering into said contract by reason of her marriage. There is no question under the testimony that the contract was made with Mrs. De Spelder, who at that time was really in charge of the home and ran the affairs of the house. Jacobus De Spelder was then an aged man and seems to have had nothing to do with the control of the household affairs. He, under the evidence, was not present when the contract was made, and there is no inference from the testimony that he ever made any agreement to pay for the services. On the contrary, the agreement expressly negatives such an understanding or inference, for the express and definite promise was made by Mrs. De Spelder to claimant that she would pay her in her will. This idea that claimant would be compensated in the will of decedent was expressed in many different ways, but all to the same effect. Under this proof, claimant could not maintain an action against Mr. De Spelder in his lifetime, or against his estate after his death, because claimant's contract was to stay and work for deceased so long as she should live, and it would not be due and payable until after the death of Mrs. De Spelder. If Mrs. De Spelder's estate was worthless, then the claimant would be without compensation, and it could not be said that the claimant could look to the estate of the husband of deceased. Upon this proposition, appellant's counsel rely largely upon the case of Kirt v. Kropp, 110 Mich. 51 (67 N. W. 1080), which they quote at large in their brief. We do not think the case controlling here, principally for the reason that the contract was made solely and alone with Mrs. De Spelder, while in the last above cited case it distinctly appears as follows:
"Plaintiff testified that she had conversations with both defendant and her husband as to her employment, and that both promised to pay her. She did work upon the farm as well as in the house." It might be well said that in the Kropp Case, the agreement being with the husband and wife, the wife could not be bound by the agreement. She certainly could not be bound as the surety of her husband in such an agreement. In our opinion the line of cases which should control in this case begins with the early case, already cited, of Tillman v. Shackleton, supra, that a married woman, living with her husband, is competent to make herself personally liable on contracts where she expressly pledges her sole credit, and the other party in reliance upon such promise parts with property or services, and that the husband is in no respect bound by her contract when the credit is not given to him. Campbell v. White, 22 Mich. 178; Hirshfield v. Waldron, 83 Mich. 116 (47 N. W. 239); Meads v. Martin, 84 Mich. 306 (47 N. W. 583).
The last above cited case was an action of assumpsit brought by the plaintiff, who was a physician, druggist, and grocer, to recover for medical services, drugs, medicines, and groceries furnished to the defendant, a married woman living with her husband. It was held that the case was ruled by Hirshfield v. Waldron, supra, and that the plaintiff was entitled to recover. In that case it was claimed by the plaintiff that he gave credit entirely to the wife because the husband was irresponsible.
In Goodman v. Shipley, 105 Mich. 439 (63 N. W. 412), the defendant, a married woman, was held liable under the rule of Hirsh field v. Waldron, supra, and Meads v. Martin, supra, for medical services rendered by plaintiff for her and for her minor daughter, by a former marriage, who was living with her, at her request, and charged to her, and for which she agreed to pay. The case is an instructive one and distinguishes the case of Howe v. North, 69 Mich. 272 (37 N. W. 213), in which last-named case the plaintiff expressly testified that the husband and wife made the contract with her, and it was said that, if the defendant made the contract claimed with her husband, she simply became responsible as a surety, and it was held that the facts of that case warranted that statement.
In a number of cases where medical expenses resulting from an injury of a married woman incurred by and charged to her have been in suit, she has been permitted to recover for them upon the ground that she was liable to pay the debt contracted by her. Lacas v. Railway Co., 92 Mich. 412 (52 N. W. 745); Lammiman v. Railway Co., 112 Mich. 602 (71 N. W. 153); First Commercial Bank v. Newton, 117 Mich. 433 (75 N. W. 934); Foster, Charles & Ewen Co. v. Felcher, 119 Mich. 353 (78 N. W. 120); Boyle v. City of Saginaw, 124 Mich. 348-353 (82 N. W. 1057); Gilson v. City of Cadillac, 134 Mich. 189 (95 N. W. 1084).
In Lempke v. Felcher, 115 Mich. 37 (73 N. W. 17), defendant, a married woman, was held liable upon her express promise to pay for the work and services of plaintiff upon her husband's property, and the court charged the jury that if the defendant represented that she was the owner of the property she would be estopped from setting up the fact that it was not her property.
It is somewhat difficult to understand the position of appellant's counsel as to the separate estate of Mrs. De Spelder, because they say in their brief the question is nowhere in issue as to whether deceased had a separate estate from and after 1901, and that this point is not questioned by defendant, and yet their argument proceeds upon the theory that she, being a married woman, living with her husband, had no separate estate to be charged. It is very evident that she believed and supposed she had a separate estate, for all the evidence tends to show that she agreed to provide for the payment of claimant in and by her will. The will of her husband, which is in evidence,