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Morgan v. Andrut

18 How. Pr. 371 Court New-York General Term, July, 1859. English

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p. 371
NEW-YOKK COMMON PLEAS.
Morgan agt. Andrut.

Headnote

An action cannot be sustained against a married woman for damages for the breach of an agreement, in cutting off or disconnecting gas-pipes from apartments which she had rented to the plaintiff, and agreed that the plaintiff should have the use of, although it appeared that she was doing business in her own name as a feme sole, and that her husband had absconded.
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 property, and the facts necessary to charge it, or the liability of the husband, founded upon his supposed assent.
New-York General Term, July, 1859.
Appeal from a judgment rendered at special term.

The defendant rented to the plaintiff 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

p. 372
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, aforesaid. ,The renting seems to have been the renewal of a hiring, which had ended on the 1st of May, 1857, and there is no testimony tending to prove that the agreement for the gas was subsequent to the hiring. The plaintiff so alleges, and it may, for the purposes of this appeal, be assumed to be true. In October following (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, whether an action could be maintained against the defendant for the cause alleged. I think not. A married woman, at law, has no power to contract so as to bind herself generally. (Jackson agt. Vanderheyden, 17 Johns. Rep. 167 ; Birdseye agt. Flint, 3 Barb. S. C. R. 500; Vanderheyden agt. 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. (Per Jewett, C. J., in Vanderheyden agt. Mallory, supra, 501.) The acts of 1848 and 1849, relative to married women, have not changed their disability to make contracts, or changed the rules of law in regard to them in that respect. (Cobine agt. St. John, 12 How. Pr. R. 333; Coon agt. Brook, 21 Barb. 546 ; Yale agt. Dederer, 21 Barb. 286 ; Rouillier agt. Wernicki, 3 E. D. Smith, 310.)

The fact that a married woman is doing business on her own account, does not alter the rule, although courts of equity might enforce any debt contracted for the benefit of her estate, which was intended to be a charge upon it. The husband would be liable for any debt contracted, or obligation incurred with his consent, express or implied (Gates agt. Brower, 5 Selden, 205), and would be responsible for her business en

p. 373
gagements 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. (Bright on Husband and Wife, 2 vol., 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 Bright on Husband and Wife (supra, 70, 72, 73), The case of Begget agt. Fuer (11 East. 301), is, however, in point. The action was trespass, and it appeared that the husband came to this country in 1805, leaving his wife destitute. That the plaintiff had lived separate from him since that time, and had made contracts, and for her support had carried on trade as a feme sole. The court held that she could not maintain the action. 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 the use of a thing attached to the freehold, and the claim does not present any of 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 herein, a married woman has been held liable and sued alone, and I think the 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 her 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.

The judgment should be reversed.

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