
    Abbot L. Hitchcock vs. Virginia Richold.
    Law.
    No. 25,050.
    Decided March 7, 1887.
    Justices Mac Arthur, Hagher and James sitting,
    1. A married woman cannot contract in this District as a sole trader, notwithstanding the Married Woman’s Act.
    2. A married woman living with her husband, carried cm. the business of a retail dealer in boots and shoes, on her own accownt and with her separate estate. For the purpose of keeping up her stock and assortment of sizes she bought a quantity of boots and shoes of the plaintiff, giving her promissory note in payment. On a suit brought against her on the note it was held that the plaintiff could not recover, this not being a contract having relation to the defendant’s separate estate, within the xneaning of the Married Woman’s Act.
    Appeal from a judgment in favor of defendant on a special finding of facts.
    STATEMENT 0E THE CASE.
    This was an action brought upon two promissory notes of $59.12 each, given by the defendant, a married woman, to the plaintiff, a merchant, in payment of a bill of boots and shoes, bought by ber to sell again. The declaration contained two counts, one upon each of the notes, and also the common counts. The pleas were the general issue and coverture. Replication “ that the defendant had a separate estate and that the goods were purchased and the notes given in relation to and for the benefit of said separate estate.”
    Thereupon a stipulation was filed, expressly waiving a trial by jury and submitting the case to the court to be tried and determined under the act of Congress, 13 Stat. at L., 501.
    The special finding of facts by the court was as follows:
    “The plaintiff is a manufacturer of boots and shoes in Boston, Mass., and the defendant is a retail dealer in boots and shoes in Washington city. The defendant is a married woman, the wife of Leopold'Richold, and was such prior to the sale of goods to her by plaintiff, for which the notes sued on were given, and has always, since her marriage, cohabited with her husband. The defendant was, in August, 1882, carrying on the business of a retail dealer in boots and shoes, on her own account and with her separate estate in the District of Columbia. For the purpose of keeping up her stock and assortment of goods she began buying goods of the plaintiff in said month of August, 1882, and she bought goods of the plaintiff for her said store on'the following dates: August 19, 1882, October 30, 1882, November 1*7, 22 and 29, 1882, and December 1 and 9, 1882.
    “The defendant paid for the boots and shoes bought prior to December 1, 1882, and gave the notes now sued on in promise of payment of the two bills bought on December 1, and 9, 1882. The goods so bought in December, 1882, were delivered to the defendant and used by her in said store in keeping up her stock and assortment, and were sold by her therein; and the said notes given for the same have not been paid and are still held by the plaintiff.”
    Then follows a’copy of the notes sued upon.
    The judgment of the court on these facts was entered for the defendant. The plaintiff appealed.
    
      Edwards & Barnard for plaintiff.
    1. The contract of purchase of other separate estate to improve or enhance the value and usefulness of a separate estate already acquired or held by a married woman is a contract “having relation to her sole and separate property," under section 729, R. S. D. G. Hauptman vs. Gatlin, 20 N. Y., 247; Oolvin vs. Currier, 22 Barb., 372; Machir vs. Burroughs, 14 Ohio St., 519; Greenough vs. Wigginton, 2 Greene (Iowa), 435; Phillips, Mech. Liens, pp. 142,143; Harmon vs. Garland, 1 Mackey, 1.
    A contract for furniture to be used in a boarding house which belongs to a married woman is valid, as relating to her separate estate. Tillman vs. Shackleton, 15 Mich., 447; Harmon vs. Garland, 1 Mackey, 1; Nispel vs. Laparle, 74 111., 306; 24 Am. Law Reg., 365,
    Also for horses bought for her livery stable. Manderback vs. Mock, 29 Pa, 43.
    Or for rent of a store to sell her goods in. Knowles vs. Hull, 99 Mass., 562.
    The question in this case is, shall not an absolute separate estate carry with it all the incidents to give it value in its efforts to accumulate and make an income and a livelihood for its owner? If not, then what investments are open to such an estate, and how can it be as if its owner were unmarried? It is the estate that is invested in a business that gives credit to the business ; and this is one of the elements of its value. If she could not “ size up ” her stock, a married woman using her separate estate in the business of a retail dealer could not well dispose of sizes already on hand, for she could not attract customers, and her trade would fail; and if she cannot obtain credit on the faith of her separate estate invested in such trade, then her right to it and power to dispose of it and to contract about it cannot be the same as if she were unmarried. She is limited and hampered as she would not be under section 727, R. S. D. G.
    The statutes on this subject usually secure, expressly or by implication, tbe wife’s right to the natural increase of her property. Stout vs. Perry, 70 Inch, 501; Mitchell vs. Sawyer, 21 Iowa, 582.
    2. How shall the manufacturer be protected in extending a credit to a married woman whose separate estate is invested in business for goods sold for the benefit of that business, and in relation to it, if she is not bound by her contract of purchase ? Neither the husband nor his property shall be bound by such contract. R. S. D. C., section 730.
    A married woman’s rights in property are statutory in this District; but in equity, before the statute, her contracts relating to equitable separate estate were charged on such estate. Conkling vs. Doul, 67 111., 355; Todd vs. Lee, 16 Wis., 480.
    “Since her personal capacity to contract is the main cause of a married woman’s inability to trade at common law, all statutes euabling her to contract indirectly enable her to trade.” 24 Am. Law Reg., 362 ; Haight os. McVeagh, 69 111., 624; Krauskop vs. Shont'2, 51 Wis., 204; Dayton vs, Walsh, 47 Wis., 113; Tiermeyer vs. Turnquist, 85 N. Y., 516, 521.
    The statute says her right to property “ acquired during marriage, in any other way than by gift or conveyance from her husband, shall be absolute,” etc. R. S. D. C., section 727.
    This necessarily implies that she may acquire property by purchase ; and if she can acquire title to separate property by purchase, surely the contract to pay for it would be one relating to it.
    In the case of Ritch vs. Hyatt, 3 Mac Arthur, 536, Justices Wylie and Cox gave a different construction to this act; but we submit that the dissenting opinion of Justice Mac Arthur in the same case is founded on the better reasoning and authority. That case did not require a construction of this part of the statute, as the land was in New York, and our law was not applicable, so that it should not bQ considered as an authority binding on this court.
    Judge Wylie himself did not feel bound by that case, as shown by his opinion in Harmon vs. Garland, a year after-wards. The defendant's right and title to the goods sold to her by the plaintiff in this case was absolute. These goods were bought long before the notes were given; were mingled with her previously acquired estate to enhance it; and were actually sold by the defendant, and the money received by her as the proceeds of her own property.
    It would require an iron rule, indeed, to compel a court of justice, in such a case, to give so narrow a construction to this statute as would allow a married woman, asserting the rights of a feme sole, to profit by such dealing at the expense of honest people.
    We submit that the judgment of the circuit court should be reversed, and judgment entered for the plaintiff.
    Leon Tobriner for defendant:
    The Married Woman's Act of this District gives no-power to married women to buy and sell as feme sole traders. Eitch vs. Hyatt, 3 Mac A., 541; Schneider vs. Garland, 1 Mackey, 355.
    • The construction given the statute in the cases cited is this: the statute was framed having in contemplation the manner in which a married woman, at common law, could acquire a separate estate.
    The separate estate in relation to which she can, under the statute, “contract, sue or be sued,” must be an estate acquired in the manner contemplated by the statute. No new mode of acquisition is given her, no other right is bestoVed or liability imposed upon her but to “contract, sue or be sued ” in relation to an estate acquired in that manner.
    The contract sued on in the case at bar arises out of an attempted acquisition, not in any of the modes contemplated by the statute. It is then sought to fix liability irpon a feme covert under a contract upon which she is not liable at common law, or under the statute in force in this District as construed by this court.
    In Stewart vs. Smith, 3 Mackey, 281, it was held that a Contract by a married woman for the loan of money to carry on the business of a boarding house,-in which she is engaged, is not a contract relating to her separate estate.
    “ Where a married woman, with her husband’s consent, kept a restaurant and purchased groceries to enable her to carry on the business, held, not a contract relating to her separate estate.” Conkling vs. Doul, 67 111-., 355.
    Goods were sold and delivered to a married woman doing business in her own name and right, with her own separate estate and with the consent of her husband ; held, that she was not liable therefor. Hasheagen vs. -Specker, 36 Ind.., 418.
    A statute empowered a married woman to carry on trade as a /eme sole with a capital not exceeding $1,000, and fixed her liability to that -extent; held, nevertheless, that she could not enter into a co-partnership. Bradstreet vs. Baer, 41 Md., 19.
    In Glover vs. Alcott, 11 Mich., 470, the Supreme Court of Michigan held that the statutes of that State did not empower a married woman to carry on, on credit, a general trade or business; -and although that court subsequently, in Tillman vs. Shaekelton, 15 Mich., 447, limited the rule laid down by them in Glover vs. Alcott, as not intended to include “any business usually carried on by females, and which consists largely and almost necessarily of female labor, such, for example, as that of a milliner,” it is submitted that the opinion announced in the first case is based upon sounder reasoning 'and ' authority, and should he adopted. . *
    ■Statutes which authorize married women to hold property by gift, grant, purchase or devise from any person other than the husband, do no't by implication carry the wife’s earnings. Yopst vs. Yopst, 51 Ind., 62', Hoyt vs. White, 4R N. H>, 47; Nat. Bank vs. Sprague, 5 0. E. Green (N. J.), 25 ; Jenkins vs. Flinn, 37 Ind., 351; Rider vs. Hulse, 33 Barb., 270.
    In the case last cited, the Supreme Court of New York held that the Acts of 1848-49, creating property acquired by a married woman “ by inheritance, gift, grant, devise or bequest from some person other than her husband” her separate property, did not include the fruits of her own labor, or the profits or income of any business in which she may have embarked.
    The statute has not changed that feature of the common law which makes the earnings of the wife the property of the husband. Seitz vs. Mitchell, 94 U. S., 584.
    If she have the right to embark in business, she has the power to withdraw from the husband both her service and her presence. Her earnings, the result of her personal efforts in the conduct of her business, would vest in the husband and be liable to the claims of his creditors; while her stock in trade, the corpus of her “ separate estate, would be protected as her ‘ sole property.’ ” Such an effect was never intended by Congress. A fair and reasonable construction was made by this court in Ritch vs. Hyatt, when it said: “We think the words of the statute have given no new rights to the married woman, in respect to the means of acquiring property. It makes a very complete settlement of all that she had, and all that she may acquire, to her sole and separate use, without conferring any new right of acquiring property in her own right. A married woman could always acquire property by gift, either by means of deed or will from others; and that faculty is preserved and made effectual by the statute.”
   Mr. Justice James

delivered the opinion of the court.

The plaintiff claims that the shoes contracted for were, within the meaning of section 129 of the Revised Statutes, relating to the District, a matter having relation to the stock of shoes already owned by the defendant in her separate estate, because a stock of shoes is made up of assorted sizes in certain proportions, and is kept in a merchantable condition by such additions from time to time. A subtle assumption is involved in this proposition, namely, that the separate estate of the wife in this case consisted, not of mere articles of personal property, but of such property clothed in contemplation of law with peculiar qualities, because it is used by her as a sole trader. In short, the suggested relation between the articles contracted for and those already owned by her can be established only by showing that she is authorized by this statute to make any contract which may be necessary to the success of her business as a sole trader. Without this condition there can be no relation between the several lots of shoes.

We think it has been settled by former decisions of this court that this section confers no such capacity. Ritch vs. Hyatt, 3 Mac A., 536, and Schneider vs. Garland, 1 Mackey, 350.

It is next claimed that even if this contract does not fall within the meaning of section 729, as a contract in a matter having relation to her separate estate, the defendant nevertheless had power, under section 727, to acquire property by purchase, just as a feme sole may so acquire property ; and that, if she may acquire property by purchase, she may acquire it on the usual terms of purchase for a consideration, and therefore may bind herself to pay the consideration. The section referred to is in the following words: “In the District the right of a married woman to any property, personal or real, belonging to her at the time of the marriage, or acquired during marriage, in any other way than by gift or a nveyance from her husband, shall be as absolute as if she were unmarried,” etc. It is claimed that these words recognize her capacity to acquire, and in part give her capacity to acquire property in any of the ways by which property is acquired, and that they consequently give her the power to make a contract to pay for it.

This section does not pretend to regulate her capacity to acquire or her capacity to make contracts connected with, or with a view to acquisition. It deals simply with the completeness and absoluteness of her right to property acquired by her, in ways already known to the common law. In a word, it regulates her status as a proprietor, and not her power to make contracts. That subject is left wholly to, and is regulated exclusively by section 729. The fact that this subject is taken up and disposed of in a separate clause or section excludes any implication that another section in any way affects the same matter.

The consideration of hardship and fraud upon creditors is entitled to no weight. It is their duty to know the law relating to the capacity of married women, just as they must be held to know the law as to the capacities of infants. If they deal in ignorance, they must accept the consequences. Certainly it is not for us to add to or strain this statute. Our duty is simply to construe it.

Judgment affirmed.

Mr. Justice Mac Arthur dissented.  