
    No. 8530.
    Samuel Friedlander vs. Mrs. Elise Schmalinski.
    In tho absence bf proof in the record that defendant was a public merchant, and that the ob ligation sued upon was for account of her business as such, ehe cannot be held liable on said obligation, being a married woman.
    APPEAL from the Twelfth Judicial District Court, Parish of Rapides. Barbin, J.
    
      It. J. Bowman, for Defendant aud Appellant:
    i. To bind a married woman, the creditor must prove either that the’ debt enured to her separate benefit, or that she was a public merchant, and the obligation was connected with her business as such. 15 A. 352 5 13 A. 540.
    
      % There is no proof that the obligation sued on had any connection with her business as merchant, or that it enured to her separate benefit.
    3. The obligation sued on is not for §3,400, but in express terms for whatever amount less than §3,400 which may be realized from the courthouse warrants and the mortgage note: that said obligation is, therefore, for an uncertain and unknown amount to be determined by afuture event, and, therefore, conditional.
    4. That a suit upon a conditional obligation, before the happening of the event, must be dismissed. 24 A. 109 ; 15 La. 235.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit against a married woman ou the following obligation:

New Orleans, December 14, 1877.
Should certain securities (named below) not realize $3,400 net cash to Mr. S. Friedlander, during the year 1878,1 promise to pay ou demand, during January, 1879, to Mr. S. Friedlander, whatever amount less than $3,400 net cash said named securities shall have realized to Mr. S. Friedlander. Say, mortgage note Agricultural Fair Association, March 23, ’76, $915, with 8 per cent, interest, and 20 Rapides warrants, each for $100, with 5 per cent, from 14th July, 1874.
(Signed)' E. Schmalinski.
S.Schmalinski.

The plaintiff alleges that the defendant was carrying on business aw a public merchant, as a member of a commercial firm of Schmalinski &. Bloom, and that this obligation is for an indebtedness growing out of her said business.

In the absence of any brief of counsel for appellee, we have scrutinized the record very closely, in seach of evidence to establish that the obligation was given by Mrs. Schmalinski in her capacity of public merchant, of that it was connected with, or grew out of, tho business .of Schmalinski &■ Bloom.

We find no such evidence.

This proof was clearly essential in order to maintain the claim against her on that ground. Bowles vs. Turner, 15 A. 352.

Proof is equally lacking that she was separate in property, or that, the debt enured to her separate benefit.

In absence of such evidence, we can discover no ground on which this action against a married woman be sustained. Graham vs. Egan, 13 A. 546; Erwin vs. McCaleb, 5 A. 173; 19 A. 206; 24 A. 96.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be avoided and reversed, and that plaintiff’s demand he dismissed, as in case of non-suit.  