
    ARNOLD against BERNARD.
    
      New York Superior Court; Special Term,
    April, 1870
    Demurrer to Complaint.—Pleading Sealed Contract Signed by Owner.—Action on Married Woman’s Contract.
    In an action on a contract made by an agent in his own name, if the com. plaint does not allege that the contract was sealed, it may be regarded as a simple contract, and, therefore, the contract of the principal, if so alleged, rather than that of the agent, although the contract be set forth - iii the complaint, and the testificandum clause recites that it was sealed.
    In an action against a married woman, to recover for services rendered to her in a separate trade or business carried on by her, such as she may carry on for her own benefit by the act of 1860, but could not at common law, the complaint is bad on demurrer if it does not show that the defendant has carried on, or is carrying on, such business in this State, or in a State having a similar law; or at least that the contract was made in contemplation of such business. So held, where the contract was made abroad.
    Demurrer to complaint.
    This action was brought .by Blanche Arnold, an opera singer, against Caroline M. Bernard, a manager of opera, to recover for professional services.
    The allegations of the complaint were as follows :
    I. That the defendant is a married woman, the wife of Pierre Bernard, and is the proprietress "and" directress of what is known generally as Richings’ English Opera Company ; and that said defendant manages and directs and conducts the business of said coitipany, and receives the profits thereof as and for her separate estate and property, and for the benefit thereof.
    II. That on or about May 18, 1869, this plaintiff, by her then name of Blanche Ellerman, at the city_of_ London, England, entered into an agreement in writing with the defendant throngh Aug. S. Pennoyer, her agent duly authorized, of which agreement the follow- i ing' is a copy :
    “ Articles of agreement entered into this 18th day of May, 1869, in the city of London, England, between Aug. S. Pennoyer, agent for the Richings English Opera Company, of the United States of America, of which company Mrs. Caroline M. Bernard is sole directress, .and Miss Blanche Ellerman, operatic soprano singer of the city of London, England.
    “ The said Blanche Ellerman agrees to render her services entire as assistant 'prima donna to said opera for a season of not less than eight months, to be extended to ten months (if so required by the directress), said season to commence on the 18 th of September, 1869, the said Blanche Ellerman to be in the city of Hew York, or Philadelphia, United States of America (as the directress may desire), not less than two weeks prior to the opening of said season; and' the said Blanche Ellerman agrees to sing not less than four nights each week, with one matinee if so required.
    “ In consideration of .the above, and in behalf of the said Mrs. Caroline M. Bernard, A. S. Pennoyer agrees to pay the said Blanche Ellerman the sum of seventy dollars per week, and to give the said Blanche Ellerman one benefit, to be taken the latter part of the ■ season, of which she is to receive one third clear of the gross receipts .after the first deduction of the regular two per cent, government tax.
    “The said A. S. Pennoyer also agrees to furnish one first-class passage from Liverpool to Hew York, and to pay all traveling expenses (except hotel bills) .during the season, which is to be understood as a traveling one;
    • “ And it is hereby agreed a.nd understood that in the event of the said Blanche Ellerman not fulfilling the above terms of agreement,—i. e., her not coming out to the United States to join the said opera company at the time appointed, &c., &c., as before mentioned, Miss Blanche Ellerman shall be under a penalty of five hundred dollars, to be paid to Mrs. Caroline M. Bernard at the time she fails to carry out the contract, unless she is by illness prevented, and certified to by a doctor, to the satisfaction of Mr. E. English.
    “To all of which we have here in the presence of witnesses, put our hand and seal.
    “A. S. Pennoteb,
    “Blanche Ellebman.
    “ Witnesses to the signature,
    “E. English,
    “Robebt Blackmobe.”
    This plaintiff further shows that on or about October 11, 1869, she intermarried with Mr. James A. Arnold, but that she has ever since that time continued to fulfill and carry out her part of said contract, and to perform the services required of her thereunder as her separate business, and for her own benefit and advantage, and the benefit of her separate estate, and not for the benefit and advantage of her husband, and that the moneys due or to become due for her services under said contract are and will be her own separate estate and property.
    That this plaintiff has fully kept and performed all the conditions and covenants of said agreement on her part to be kept and performed.
    That the defendant has failed, omitted and refused to perform, &c.,—alleging breach in non-payment of salary, and demanding judgment therefor.
    To this complaint the defendant demurred, assigning as grounds therefor :
    
      1. That plaintiff had not legal capacity to sue.
    
      2. That there was a defect of parties plaintiff.
    3. That the complaint did not state facts sufficient to constitute a cause of action.
    
      Samuel J. Crooks, in support of the demurrer.— I. Plaintiff’s allegations do not bring her or her business within any statute of the State which enables her to sue. She should show marriage at a time and place bringing her within the statute, and her residence within this State, and her contract for the performance of services here.
    II. There are no sufficient allegations to charge the defendant, being a married woman, under the statutes of this State. It is not alleged that she has a separate property within this State, nor that the business was conducted here, nor that it was carried on, on her sole and separate account. Although the business has a name, it has no local habitation or status. The statutes {Laws of 1848, 9; 1860, 2) are local (Savage y. O’Neil, 42 Barb., 374).
    III. The contract alleged has no relation to any business carried on by defendant under any statute of this State, and therefore is void (Yale y. Dederer, 22 N. Y., 450, Opinion of Seldeb", J., approved by Barbaed. J.; Brown y. Hermann, 14 Abb. Pr., 394; Kelso y. Tabor, 52 Barb., 125). The complaint against a married woman must allege the facts constituting her peculiar liability for an act relating to the business carried on by her for her own benefit (Baldwin y. Kimmel, 16 Abb. Pr., 353 ; and see Coster y. Isaacs, 16 Id., 328; Klen y. Gribney, 24 How. Pr., 31; Young y. Grori, 13 Abb. Pr., 13, note ; Barton y. Beer, 35 Barb., 78; Schmitt y. Costa, 3 Abb. Pr. N. S., 188). .
    IY. The plaintiff’s husband should be joined {Code of Pro., % 114).
    Y. The contract set forth does not bind the defendant, for it is under seal, and she is not named as a party (22 Barb., 239 ; 23 Wend., 435 ; 4 Hill, 351 ; 1 Hill., 420).
    VI. If it were the contract of defendant, it is not valid by the law of the place where made, for the common law is presumed to prevail there (White n. Knapp, 47 Barb., 549 ; Wright «. Delafield, 23 Id., 498).
    
      Baker & Cloyd, opposed.
   JONES, J.

The instrument sued on must be regarded as a simple contract in writing not under seal (Van Santwood v. Sandford, 12 Johns., 197; Stanton v. Camp, 4 Barb., 274).

Being so regarded, it is, under the authority of the cases cited supra, to be regarded as the contract of the defendant upon the allegations in the complaint.

But the. complaint show's that both the plaintiff and defendant are married women. This being so, the complaint must allege facts which entitle the plaintiff, under the laws of this State, to bring an action in this shape.

The law of this» State, so far as it relates to the present case, is that a married woman may “ carry on any trade or business, ■ and perform any labor or services on on her sole and separate account, and the earnings of any married woman from her trade, business, labor or services, shall be her sole and separate property, and maybe used or invested by her in her own name” (Laws of 1860, 157, ch. 90, § 2). “Any married woman may, while married, sue and be sued in all matters having relation to her property, which may be her sole and separate property, ... in the same manner as if she were sole” (Laws of 1860, 158, ch. 90, § 7).

The trade or business, or labor or services out of. which the debt or demand for which the married woman is authorized to sue, or on which she is allowed to be thus sued, must arise out of a trade or business carried on by her, or labor or services performed, within this State, or any other State where the same law obtained In this. This is evident, since her capacity to sue and be sued depends upon her right to carry on a separate trade or business, and to perform labor and services on her separate account, and to receive the profits and earnings as her sole and separate property. If she carries on a trade or business, or performs labor and services, in a State where no such law exists as in this State, then that trade and business, and the profits thereon, and the earnings of that labor and service, belong exclusively to the husband ; and the wife has no property or interest therein : she cannot, by by bringing an action in this State, make them her sole and separate property.

Now in this case the complaint does not show that defendant has ever carried on, or is now carrying on, the business of an English opera company (in relation to which the contract sued on was made) in this State, or any other State having a law similar to the act of 1860.

Nor does it show that the plaintiff ever has carried on or .is now carrying on the business of an English opera singer, or that she has ever performed any labor or services for the defendant, within this State or any other State having similar laws.

It does not even show that defendant contemplated carrying on the business of an English opera company, or the plaintiff that of an English opera singer, within the State of New York or any other State, &c., and that the contract in question was made pursuant to such mutual contemplation.

Even if the complaint did show this, it would be exceedingly doubtful whether this action could be maintained without allegations that the defendant did actually commence and carry on her contemplated business, and the plaintiff_performed services for the defendant under the contract within this State, or such other State, &n. ; and even on such farther allegations, the plaintiff could probably only recover the value of her services actually rendered in this or such other State, using the.contract simply as proof of the value.

On these doubtful points it is unnecessary to express any opinion, since the allegations in the complaint do not present them for decision.

It follows, from the above reasoning, that the complaint fails to show any cause of action in favor of the plaintiff, or any against the defendant.

Demurrer sustained with costs, with leave to plaintiff to amend on payment, of said costs.  