Lugar v. Swayze — 49 N.Y. St. Rep. 38

Majority

p. 38

Frank Lugar, App’lt, v. Joe A. Swayze, Resp’t.

(City Court of New York, General Term,

Filed November 25, 1892.)

Headnote

1. Married women—Contract.

While a married woman may make contracts and become liable thereunder as if she were a, feme sole, she is not so liable where she contracts as a married woman and not in her individual capacity.

2. Same.

Defendant, who occupied a community flat with her husband, employed plaintiff to paint and decorate it. An estimate was made in her name and the work performed in accordance therewith, and plaintiff received therefor the husband’s note, which was not paid, and plaintiff recovered judgment thereon. Neld, that the facts tended to show that defendant contracted as a married woman; that plaintiff recognized her as such and looked to the husband as his debtor, and that he could not hold defendant liable.

Appeal from judgment in favor of defendant.

William Douglas Moore, for app’lt; Fullerton & Rushmore, for resp’t.

The plaintiff is a painter and decorator. _

_ The defendant is a married woman. She applied to plaintiff to paint and decorate a flat occupied by her.

A written estimate was made out in her name by plaintiff and agreed to ; the work was done according to the terms thereof.

p. 39

Plaintiff’s dealings were had solely with defendant She spoke of the flat as her flat.

After the work was finished the plaintiff demanded payment from defendant, by mail, several times.

In response to his last request he received the promissory note of defendant’s husband, which was not paid at its maturity.

Plaintiff sued him thereon and recovered judgment thereon in Hew'Jersey.

The flat is one known, I believe, as a community flat, owned by its occupant usually.

It does not appear in this case that the defendant was owner of the flat in which these repairs were done.

A married woman may make contracts and she is liable thereunder just as if she were £ feme sole, it is true: but such is not the case where she contracts as a married woman and not in her individual capacity.

In matters concerning the repair or management of her husband’s household or premises, when acting in the capacity of a married woman, she is only the agent of her husband and cannot be held as a principal; all the common law disabilities apply to contracts of that character, and in reference to such contracts her liability is not any greater to-day than it was prior to the passage of the acts which removed her disability to make contracts.

The acceptance of defendant’s husband’s note and subsequent suit and judgment thereon, I think, indicate that plaintiff intended to give credit to him and not to defendant personally, and is conclusive against plaintiff. McCausland v. King, 26 N. W. Rep., 836 . In fact, the case has abundant evidence showing that plaintiff recognized defendant as a married woman, and dealt with her as such and apparently looked to the husband as his debtor.

I do not think that it was necessary in this case for defendant to plead coverture or payment by acceptance of her husband’s note, the theory of her defense being that her husband was plaintiff’s debtor and not herself; but so as to avoid the force of such objection, in case it has any, the pleadings are hereby amended so as to conform to the proof if so desired by defendant.

We think that the judgment should be affirmed.

Judgment affirmed, with costs.

Ehrlich, Oh. J., concurs in result.