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Boynton v. Squires

65 N.Y. St. Rep. 653 Court N.Y. Gen. Term Decision date 1895-02-12 English

Delivered by Merwin, J.

Contents

Majority

p. 653
Fitz Boynton, Resp’t, v. Ophelia E. Squires, Impleaded, etc., App’lt.
(Supreme Court, General Term, Third Department,
Filed February 12, 1895.)

Headnote

1. Married women.
When services are rendered for the benefit of the separate estate of a married woman, with her knowledge, the presumption" is that they were rendered at her request.
3. Same.
The fact that the goods were charged to the husband, does not necessarily relieve her, if the vendor did not know of her ownership.
3. Pleading—Joint liability.
The fact that the complaint charges a joint liability, does not relieve a defendant, if the facts warrant a finding of individual liability.
Appeal from a judgment of the county court, affirming a judgment rendered in a justice’s court in favor of plaintiffs.
E. E. Mellon, for app’lt; T. E. Courtney, for resp’ts.

This action was commenced in justice’s court against the defendant and her husband, E. Frank Squires. The complaint was for goods sold and delivered. The main issue was whether the appellant was liable. There was a trial by jury, and a verdict against both defendants. The husband did not appeal. The plaintiffs were in the drug business, and the recovery was for paints and oils sold by plaintiffs at their store, and delivered to the two witnesses Galpin and Mullane in September, 1892, and taken by them onto a farm owned by the appellant, and there used in September, 1892, by the witness Galpin, in painting the buildings on the farm. Mrs. Squires became the owner of the farm in July, 1892, and she, with her husband, moved onto it in December, 1892. She was there about the buildings while the painting was being done. It may be inferred that the painting was being done preparatory to the subsequent occupancy. The husband directed the men to get the goods of the plaintiffs, and they were charged to the husband. There is evidence that the husband did not direct how they should be charged. There is evidence tending to show that the plaintiffs did not know that the wife owned the farm. The witness Mullane worked on the farm from-July to December, 1892, and he testifies that he worked for the defendants, and that the husband hired him and paid him. The witness Galpin testifies that the husband hired him, and that, in getting his pay, he sued both defendants, and recovered a judgment against both.

In Cutter v. Morris, 116 N. Y. 810 ; 26 St. Rep. 508 , it is said that when services are rendered for the benefit of the separate estate of a married woman, with her knowledge, the presumption is that they were rendered at her request. The same doctrine was laid down in Fairbanks v. Moihersell, 60 Barb. 406 . This ease was referred to, but not overruled, in the case of Jones v. Walker, 63 N. Y. 612 , which is relied on by the defendant. See, also, Mackey v. Webb, 24 St. Rep. 838 . In the present case, in view of

p. 654
the presumption referred to and of the evidence in the case, it was for the jury to say whether the painting was done at the appellant’s request, and, if so, it would then also be a question of fact whether the materials were not ordered by her request, and obtained by employes at work either for her alone or for her in association with her husband. The fact that the goods were charged to the husband did not necessarily relieve the wife, as the plaintiffs did not know of her ownership. Meeker v. Claghorn, 44 N. Y. 349 ; Fester v. Persch, 68 id. 400 . The fact that the complaint charges a joint liability does not relieve the appellant if the facts warrant a finding of individual liability. Brumskill v. James, 11 N. Y. 294 ; Stimson v. Van Pelt, 66 Barb. 151 . As the case stands, we think that the. judgment should be affirmed. Judgment affirmed, with costs.

All concur.

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