Barton v. Beer , 35 Barb. 78 ( 1861 )

Allen, J.

At the time of the purchase of the cigars for which the first note was given, the defendant Aveline being then as now a married woman and living with her husband, had not capacity to contract, and the contract of purchase was void and vested no projserty in the cigars, in her. Her note was also void. Had the cigars come to the possession of the husband, or if they were bought by the wife with his knowledge and assent,v he might have been liable for them. But the cigars were not applied to the use of the husband, and the debt has at no time been treated as his debt. On the contrary, the admission is that at the -time of the giving of the note in suit, “ the stock of goods and cigars were the separate property” of the feme defendant. The sale in 1859 being void, vesting no property in the goods in the wife, the cigars, although in her possession under this void contract, remained the property of the plaintiff, for which he might have brought trover, and the contract of sale would have been no defense. In Smith v. Plomer, (K. B. 52 G. 3d,) cited in 2 Saund. R. 47 b, note (f), and in Peake’s Ev., Am. ed. of 1824, p. 497, it was held that when the person to whom the goods were let was a married woman living separate from her husband, she was unable to give any property in them, and . that therefore such a bailment did not deprive the real owner of his action of trover. (S. C. reported 15 East, 607.) There was no evidence in the case before us that the husband had adopted the contract, and the admission negatives any presumption that he had at any time adopted or assumed the contract, or exercised any control over the goods.

The law of 1860 (Sess. Laws, 157, § 2) relieved the de- . fendant Aveline from her disabilities, and enabled her to carry on her trade or business and perform any labor and services on her sole and separate account. The power to carry on a trade or business includes the ability to make all contracts incident to such trade or business. And the same act, (§ 8,) by exempting the husband from all liability upon or in respect to bargains or contracts made by the wife in or about the carrying on of her trade or business, recognizes the ability of the wife to make executory contracts which will be valid as against her notwithstanding her coverture. At the date of the note in suit, then, April 11th, 1860, the feme defendant was engaged in carrying on her business of a grocer, under the act of March 20th, 1860, and was in possession of the cigars, which were the legal* property of the plaintiff. She was then capacitated to buy them, and did give the note in suit for the purchase price of them, and thus by that promise to pay acquired a valid title to the cigars. And, as it is admitted in terms, we must take the fact to be that the cigars became and “ were her separate property,” and a part of her stock in trade. It is urged that the cigars became, by the purchase in 1859, the property of the husband. If this were so, then there was no consideration to uphold the note, given in April, 1860, as against the wife. But the difficulty is, this objection to the plaintiff’s right to recover is admitted away. There was no evidence, and the case was decided upon the admissions of the parties, and the admissions are conclusive against this view of the transactions in 1859. The same act, before referred to, declares that a married woman may sue and be sued in all matters having relation to her separate property, in the same manner as if she were a feme sole. By § 114 of the code, she could sue and be sued alone and without her husband in all actions relating to her separate estate. So that this section (7) of the act of 1860 was not wanted for that purpose, but the intent was to make the forms of procedure for and against married women, in all actions in which they could sue or be sued alone, the same as they would be in actions for or against any other party not under any disability ; and without giving it this effect the section has no meaning, and works no change in the law, or in the form of action or course of procedure, in the actions concerning the separate property of a married woman. The act may be, as suggested, and very likely will prove to be, very mischievous and pregnant with much evil, but that must be remedied by the legislature. Whenever femes covert may sue and be sued as femes sole, they are sued by the same process and in the same form, and the same form of judgment given against them as if they were not covert. (Drury v. Mazarine, 1 Ld. Raym. 147.) Indeed, the capacity conferred upon her to contract liability and incur debts creates a necessity of a corresponding liability to actions. For the evil would be greater than it otherwise would be if she may impose upon the public by making contracts for which neither she nor her husband is liable. If she acts as a feme sole, she ought, in justice to the public, to be subjected to all the duties and liabilities of a feme sole. (Per Lord Loughborough, 1 H. Bl. 349. Walford v. Dutchess De Pienne, 2 Esp. R. 554.)

The judgment must be affirmed.