Roper & Caldwell, Philadelphia, for appellant.
Michael J. O'Donnell, Joseph A. Hagerty, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 121]
Plaintiff-appellant sued in assumpsit to recover from her husband certain sums of money which she had paid to third persons for repairs and improvements to premises owned by him.
Preliminary objections to her complaint were sustained with leave to plaintiff to file an amended complaint. Preliminary objections to the amended complaint were likewise sustained and judgment entered for defendant on the pleadings. The amended complaint averred, in substance, that prior to their marriage appellee promised appellant that, if after their marriage she would live with him in the aforesaid premises, he would make certain necessary improvements and repairs to make the dwelling house habitable and would place the title in their joint names as
[ 169 Pa. Super. Page 122]
tenants by the entireties. After she had paid the third persons the sum of $1166.30, at appellee's request, for the necessary repairs and improvements out of her own funds acquired prior to the marriage (this was a second marriage for both parties), he refused to convey the premises to himself and wife as tenants by the entireties, but promised to reimburse appellant for the money which she had expended for repairs and improvements, as aforesaid.
The preliminary objections which the court sustained were as follows: '1. The facts alleged in the Amended Complaint do not set forth a contract between plaintiff and defendant in that there is no consideration averred. 2. The Complaint is void on its face since the wife does not have the capacity to sue her husband.' We will first consider objection No. 2.
Appellant bases her right to recover not only on the Act of May 1, 1913, P.L. 146, 48 P.S. § 114, but also on the Act of June 8, 1893, P.L. 344, as amended by the Act of March 27, 1913, P.L. 14, 48 P.S. § 111.
Appellee admits 'that if the money in question had been paid directly to the husband by the wife under promise to repay * * * the present suit would be valid,' but contends that 'a wife may not sue to recover property which the husband never had in his possession.'
In Ertel v. McCloskey, 167 Pa. Super. 120, 74 A.2d 652, we held that a wife who had been deserted by her husband had a right to sue him under the Act of May 1, 1913, P.L. 146, for rent owed by him and paid by her to a third person. Section 1 of the Act provides in part that 'any wife, who has been deserted, abandoned, or driven from her home by her husband, may sue her husband civilly * * * upon any cause of action now existing or hereafter accruing, with like effect as if such wife were a feme ...