Smith v. Kennedy — 20 N.Y. Sup. Ct. 9

Majority

p. 9

MARY W. SMITH, Plaintiff, v. EVALYN KENNEDY, Defendant.

Headnote

Married, woman — liability of, on note, when tier husband has entire control of hen'

This action was brought to recover the amount of a promissory note made by the defendant, a married woman, who owned a farm of 330 acres, on which she lived with her husband. He had no property, but carried on the farm for her and bought and sold whatever he pleased, using her money by her consent. Every thing he bought became hers. The proceeds of the note, as soon as received, were given by her to her husband, and were not used by him for plaintiff’s benefit or that of her separate estate.

Held, that the defendant was engaged in carrying on the business of farming through her husband, acting as her agent, and that she was liable for the amount of the note.

Motion for a new trial on a case and exception ordered to be beard in tbe first instance at tbe General Term, after a verdict directed in favor of tbe plaintiff.

This action was brought upon a promissory note made by defendant, payable to Mary W. Smith or bearer, for $500, with nse, and dated on tbe 4th day of July, 1865, payable one day after date. Tbe defense, among other things, was that tbe defendant at the time of tbe execution and delivery of tbe note was a married woman, and that tbe note was executed and delivered for money loaned to her husband, George W. Kennedy, and was not given for tbe benefit of her separate estate. Tbe defendant received the money and gave her note for it. She immediately gave tbe money to her bus-band, who testified that none of it was used for defendant’s benefit or for tbe benefit of her separate estate. At tbe close of tbe evidence tbe defendant made a motion for a nonsuit, which motion was denied, and defendant duly excepted. Tbe defendant then requested tbe court to direct a verdict for tbe defendant, which was refused, and defendant excepted.

Tbe plaintiff’s counsel requested tbe court to direct a verdict for tbe plaintiff and against tbe defendant for tbe amount of tbe note and interest and costs, on tbe ground that tbe money being delivered to defendant, and she executing tbe note, was evidence that tbe

p. 10

money was obtained for tbe benefit of ber separate estate, and. thereupon the court directed a verdict in favor of the plaintiff and against the defendant for $652.80, to which decision and direction thus made defendant duly excepted.

Waters <& Knox, for the plaintiff.

K. O. Timer, for the defendant.

On the trial of this case the counsel of each party thought there was no question for the jury and the court directed a verdict for the plaintiff.

The defendant was a married woman and owned a farm. Her husband did not own a dollar; but he carried on the farm and dealt with it by her permission, as he chose. When he bought any property he bought it for her. If he wanted to sell any thing he sold it; and he used this defendant’s money, by her consent, as he pleased. The farm was one of 830 acres, and there were, at the time of the transaction, sixty cows on it. Whatever the husband bought on the farm was the wife’s property; and his creditors could not find any property of his.

This, then, is a case where a married woman was carrying on the business of farming through her husband as her agent. He was none the less her agent because she seems to have given him unlimited power and authority to do as he pleased. The avails of the business were hers, although she choose to give them to him. In Nash v. Mitchell (MSS., decided November 13, 1871) the Court of Appeals held that the management by a married woman of her landed property, the receipt of the rents and income and the disposing of them was not a trade or business within the meaning of the statute. But in the present case the defendant actually carried on the business of farming and was not merely in receipt of rents.

She borrowed this money in her own name and received it herself. She then handed it over to her husband who was carrying on the farm. It thus became part of the property employed in that business. The fact that the husband wasted or misused it does not alter the liability of the wife who borrowed it.

The very money borrowed became a part of her separate estate

p. 11

by the act of borrowing, and tbe promise to repay it related to her separate estate. Her husband was not liable; and it would be utterly unrighteous if she should be permitted to cheat tbe plaintiff out of this money. (Bodine v. Killeen, 53 N. Y., 93 .)

Tbe motion for new trial should be denied and judgment ordered on tbe verdict, with costs.

Tbe case of Bodine v. Killeen ( 53 N. Y., 93 ) seems to me to sustain the foregoing views and conclusion.

Present — Learned, P. J., Boardman and Sawyer, JJ.

New trial denied and judgment ordered for plaintiff on verdict, with costs.