Recent Cases: Husband and Wife — Covenants Not To Compete — Married Women's Right To Contract In Nebraska

Partners in a mortuary business made a contract containing a clause to the effect that if the second party to the agreement quit the partner­ship, he could not "set up or establish" a competing business either directly for himself or in association with others in the vicinity of North Platte for a period of ten years. This partner's wife set up a competing business in partnership with a complete stranger to the original contract. The husband quit the old business and worked for the new business, but received no pay. The wife, while apparently doing little to aid the business, took a partner's share of the profits.

Held: although this was a valid covenant not to compete, the court will not grant equitable relief by specifically enforcing the contract against the business, the wife, or the former partner (the husband) . The common law developed the theory that the wife did not have capacity to make contracts in her own name, basing the rule upon the concept of the unity of husband and wife. It was a "man's world," and because the wife's sole responsibility was to take care of the home and family, she did not need these rights. She could, however, act through her husband.

With the entry of women into business fields this situation became impractical, and through "married women's statutes," which were liberally construed, some of the common law disabilities were removed. The result is that today the law recognizes that unity exists partially between the husband and wife in that they in fact live together and their possessions are largely mingled. To consider the husband and wife completely independent before the law would be to ignore basic economic, sociological, and psychological facts. The problem in the instant case is how far should the law go in recognizing the independence of the wife?