Morgan v. Andriot

tiff the second floor of the premises 504 Broadway, and agreed that the plaintiff should have the use of the gas fixtures on that floor, for the purpose of burning gas to light the same. At the .time the lease was made, and at the time the agreement was made, assuming them to be independent of each other, the defendant was a married, woman, but doing business in her own name, as a feme sole, at 504 Broadway. The renting seems to have been the renewal of a hiring which had ended on the 1st of May 1857, and there is testimony tending to prove that the agreement for the gas Avas subsequent to the hiring. The plaintiff so alleges, and it may, for the purposes of this appeal, be assumed to be true. In October folloAving (1857,) the defendant caused the gas pipes connecting with the fixtures "in plaintiff’s apartments to be cut off or disconnected, and for the damages occasioned thereby, that act being in violation of the agreement thereto relating, the plaintiff brought her action in the court below. It also appeared that the husband of the defendant had, in 1856, absconded or run away, and had not returned at the time of the trial. The first question presented on these facts is, Avhether an action could be maintained against the defendant for the cause alleged. I think not. A married Avoman, at law, has no power to contract so as to bind herself generally, (Jackson v. Vanderheyden, 17 Johns. Rep. 167 ; Birdseye v. Flint, 3 Barb. S. C. R. 500; Vanderheyden v. Mallory, 1 Com. 462), and courts of equity, in conformity with this principle, hold that her general personal engagements will not affect her separate property. The acts of 1848 and 1849, relative to married women, have not removed their disability to make contracts, or changed the rules of law in regard to them in that respect. Cobine v. St John, 12 How. Pr. R. 333; Coon v. Brook, 21 Barb. 546 ; Yale v. Dederer, 21 Barb. 286 ; Rouillier v. Wernicki, 3 E. D. Smith, 310. The fact that a married woman is doing business on her oaaui account apparently, and Avith her own estate, does not alter the rule, although courts of equity might enforce any debt contracted for the benefit of her estate, Avhich Avas intended to be a charge upon it. The husband would be liable for any debt

contracted or obligation incurred with his assent, express or implied, (Yates v. Brower, 5 Selden, 205), and would be responsible for her business engagements made under such circumstances. In England, by a particular custom of the city of London, a married woman is enabled to carry on trade as a feme sole merchant. The trade must, however, be carried on within the city, and for the wife’s sole account. If the husband meddle with it, he will not be protected by the custom. 2 Bright on Husband and Wife, 76, 77. It seems also to be the rule in England, that when .the husband is an alien enemy the exception does not apply, nor where he is banished for life. The cases on this subject will be found in 2 Bright on Husband and Wife, 70, 72, 73. The case of Begget v. Frier (11 East. 301,) is, however, in point. The action was trespass, and it appeared that the husband came to this country in 1805r leaving his wife destitute; that the plaintiff had lived separate from him since that time, and had made contracts, and for her support had earned on trade as a feme sole. The court held that she could not maintain the action. Marshall v. Rutton, 8 Term Rep. 545.

In this case the defendant is not charged with any debt contracted with reference to her business, or for the benefit of her estate. It is for damages occasioned by the violation of a contract granting th; use cf a thing attached to a freehold, and the claim does not preS3nt am- cf the elements necessary to obtain relief against the estate of the defendant, if the action'had been brought for that purpose. I have not been able to find any case in this state where, under circumstances like those disclosed here, a married woman has been held liable sued alone, and I think he judgment of the justice cannot be sustained on precedent or authority. If a contract be made with, a married woman, the contracting party takes it subject to the legal disabilities, and must rely either upon her separate estate and the facts necessary to charge it, or the liability of the husband,, founded upon his supposed assent.

Judgment reversed.