
    WALDRON against RITCHINGS.
    
      New York Common Pleas;
    
    
      General Term, December, 1870.
    Liability of Married Woman.—Form of Action. —Capacity to Contract.—Law of Place.
    An action will not lie against a married woman, to recover damages for breach, of a contract made by her in a business carried on by her as if she were unmarried, if she was a resident of another State, the law of which is not shown to have given her capacity to make such contracts, and the contract was made and to be performed in such another State.
    
      In the absence of proof to the contrary, the court presumes that the same law exists in other States in respect to the relation of husband and wife that existed here before the passage of the Married Women’s Acts.
    The acts of 1860 and 1862,—enabling married women to make contracts in business carried on by them, or in relation to their separate property, like the acts of 1848 and 1849, relative to holding and disposing of separate property,—are to be construed as intended only for the benefit of married women resident in this State, and carrying on them business here.
    When negotiations for a contract are carried on between two parties living in different States, partly by the interchange of letters, and partly by oral communications through an agent, the contract is regarded as made in the State or place where it first takes effect, so as to become a binding obligation upon both parties.
    Plaintiff, being in Mew York, agreed with defendant, the manager of an opera in Philadelphia, to go there and make her debut, she to be assured, if she did not fail in the estimation of the public and the press, of an engagement upon terms specified in the negotiation between the parties.—Held, that the contract was not made in Mew York; but in Philadelphia, upon her fulfilling the test of success.
    In general, the validity of a contract is to be decided by the law of the place where it is made, unless it is to be performed at another place; and this rule extends to the capacity of the contracting party as affecting the validity.
    Appeal from a judgment of the marine court.
    This action was brought by Laura Waldron against Caroline Ritchings, otherwise called Caroline Bernard.
    The facts are sufficiently stated in the opinion of the court.
    
      Samuel J. Crooks, for the appellant.
    I. The complaint should have been dismissed,, and the verdict should have been set aside on the motions made for that purpose.
    II. The record shows defendant, at the time of commencing the action, to have been a non-resident of this State, and a resident of Pennsylvania; and that the alleged services were rendered in Massachusetts under an agreement made in Pennsylvania, and there was no proof that defendant had at any time carried on business on her sole account in this State.
    ITT. The recovery was not for services, but for readiness to perform, in other words, damages for an improper discharge, and such an action cannot be sustained (Morgan v. Andriot, 2 Hill, 431).
    IY. Whether we refer to the law of the place of the domicil of the defendant, or to the law of the place where the contract was made, to determine the validity of the contract sued on here, the plaintiff has no right to recover under the laws of this State ; but the law of Pennsylvania or Massachusetts must control; and the court cannot presume that to be the same as the statutes of this State.
    
      Jesse K. Furlong, for the respondent.
    I. If defendant had no separate estate or property, the objection should have been taken on the trial. The agreement was made in this State, and therefore it does not matter where the services, in then* very nature transitory, were performed.
    II. If defendant relies on the fact that the laws of Pennsylvania or Massachusetts are different from our own, she should have proved them. The law of the forum furnishes in all cases prima faeie the rule of decision, and a party who wishes the benefit of a different rule must aver and prove it (Monroe v. Douglass, 5 N. F., 447).
    III. There was no objection at the trial that the action was for services instead of for a breach of agreement to employ, and if the objection be well founded, the court may amend the pleadings to conform to the proof.
    
      
       For the most recent exposition of the rules now applicable to the rights and powers of married women, see the Com Exchange Insurance Co. v. Babcock, Ante, 255.
      
      It may be further observed that much of the confusion and uncertainty existing on this subject arises from regarding the separate estate of a married woman as an equitable estate. In the English law, as in our own jurisprudence at one time, the only separate estate known was an equitable estate, the invention of the court of chancery. The language of most of the cases in our books,—of all the authorities prior to 1848,—was of such an estate, and is to be so understood.
      But under the existing statutes, the married woman’s separate property is a legal estate. This was so held by the court of appeals in Hauptman v. Catlin (20 N. Y., 247), Judge Denio delivering the opinion of the court, from which only two' judges dissented. Over a legal estate, such as the statutes recognize in the married woman, a court of equity has not exclusive control: this was there held.
      It is obvious, therefore, that the limitations of liability and of validity, which were recognized by the courts of equity in enforcing debts or contracts against the equitable estate that was the creation of their own equitable maxims, are not to be applied, ex proprio vigore, to the cases arising under the present statutes.
    
   By the Court.—Daly, Ch. J.

The recovery in this case was for two weeks’ services by the plaintiff in Boston, as a member of an operatic troupe called the Ritchings Opera Company, of which the defendant was the manager, and for the plaintiff’s expenses in returning to Mew York, amounting in the whole to one hundred and six dollars.

The defendant is a married woman, and admits in her answer that she is possessed of a separate estate and property, and that she was and is carrying on business on her separate account; the business, as appears by the evidence, being the proprietorship and management of the opera troupe or company which bears her name. The plaintiff is a resident of Mew York, the defendant of Philadelphia, and the action has been brought against the defendant, as a non-resident, by attachment. ■

The plaintiff being in Mew York and the defendant in Philadelphia, a negotiation was commenced by the defendant’s agent for the engagement of the plaintiff to appear in the leading female characters in three specified operas, at fifty dollars a week, together with traveling expenses ; and after various letters had passed between the defendant’s agent, the defendant herself, and the plaintiff’s father, it was agreed that the plaintiff should come to Philadelphia and make her debut in one of the, operas, and if, to use the language of the defendant, she did not fail in the estimation of the public and the press, that she was to be assured of an engagement upon the terms above stated.

The plaintiff accordingly relinquished an engagement which she had in the Academy of Music in Brooklyn, went to Philadelphia, and appeared in one of the parts designated. She was laboring under the disadvantage of a recent sickness, but the impression which she produced was not, it would seem, regarded as unfavorable, and a further trial in the same character was determined upon, to be made at Boston, whither the troupe proceeded,immediately afterward. The' second trial was accordingly made in Boston, and in respect to the result of it there is a direct conflict in the evidence; the plaintiff and her father testifying that she was very well received, and the defendant and the defendant’s agent that her performance was a failure ; that there was a general expression of disappointment among the audience, the opinion being freely expressed that the opera represented had failed through the incompetence of the young lady that had appeared in the leading female character. Regarding the trial as unfavorable, the defendant’s agent notified the plaintiff’s father that the defendant would not engage his daughter, but the father insisted that she had succeeded, and that the defendant was bound to engage her. She had been paid fifty dollars for her hotel expenses in Philadelphia, on her debut, and fifty dollars for her first week whilst there, to which was added fifty dollars covering the week of her appearance in Boston, making, in all, one hundred and fifty dollars ; and as she refused to be discharged, she remained for three weeks in Boston, for the two latter of which she recovered in the action at the stipulated rate of fifty dollars a week.

The point taken upon this appeal is, that the defendant, being a married woman and a resident of the State of Pennsylvania, was incapable of binding herself by contract, and that the assumed obligation upon which she was sued, was nugatory and void. This was not an action to charge her estate in equity, nor could such an action have been maintained in the marine court. It was an action for a breach of contract, in which judgment was recovered against her the same as if she í were a.feme sole (Barton v. Beers, 35 Barb., 81).

At common law, a married woman was incapable of .binding herself by contract. Such was the law of this State until the passage of our enabling statutes, and we must presume, until the contrary appears, that the same law exists in other States, in respect to the relation of husband and wife, that existed here before the passage of these statutes (Savage v. O’Neil, 42 Barb., 378; Abel v. Douglass, 4 Denio, 309; Wright v. Delafield, 23 Barb., 498).

By our enabling statutes (Laws of 1860, ch. 90; 1862, ch. 172) married women are allowed to carry on any trade or business, and to bargain or contract in or about carrying it on. The business here referred to is, by the words of the statute, defined to be one carried on under any statute of this State, very clearly indicating that it is one to be carried on within the limits of this State, for our statutes have no extra-territorial operation, and our legislation upon such matters is necessarily confined to our own State. Nor can we entertain any presumption that the common law has been undefined by legislation in other States, as it has been in this (White v. Delafield, 23 Barb., 498); the only presumption, in the absence of proof of what the law is in any particular State, being the general one before referred to.

In the absence of proof to the contrary, then, we must presume that the defendant was incapable, by the laws of Pennsylvania, of binding herself by such a contract, and that if the action had been brought against her there, the State where she resides, it could not have been maintained. And we must presume also, that if it had been brought in the State of Massachusetts, the State in which the services were rendered for which the plaintiff has recovered, that the same result would have followed.

Can it be maintained against her in this State % ' It was held in Savage v. O’Neil (42 Barb., 378), that a married woman claiming the benefit of the acts of 1848 and 1849, must show that she was a resident of this State at a time and under circumstances to entitle her to such a benefit; and if the same construction is to be applied to the acts subsequently passed, then the operation of these enabling statutes is confined to married women who are residents of the State, for if married women who are non-residents are precluded from the benefits which these statutes confer, it necessarily follows that they cannot be subject to the obligations which arise from the enjoyment of the benefits.

It appears to me that the construction put upon the acts of 1848 and 1849 is equally applicable to the acts of 1860 and 1862, for the whole design of this legislation appears to have been for the benefit of married women in this State.

This is indicated by the clause in section 1 of the act of 1860 which declares that “that which a woman married in this State owns at the time of her marriage shall remain her sole and separate property,” as well as by the preceding clause—“the real and personal property which a married woman now owns,” &c. &c., and the clause in section 8 which exempts her husband from all liability for bargains or contracts made by her in respect to her separate property, or which is made “in or about the carrying on of any trade or business under any statute of this State.”

This latter provision, as I have before said, indicates very clearly to my mind, that the authority to carry on any trade or business, conferred by the second section of the same act, means a trade or business carried on by her in this State, and not in States or countries where she is precluded by reason of her coverture from binding herself by contract. In short, that the whole of the legislation was intended only for the benefit of married women in this State, who were residents here when these enabling statutes were passed, or who might afterwards become residents within our territorial limits.

This construction is a very simple one, and is easily carried out. The contract of a married woman domiciled here, made in a case authorized by our laws, would be upheld in States and countries where married women are precluded by reason of their coverture from entering into contracts, unless there is some positive municipal regulation to the contrary ; the validity of a contract, or the capacity of a person to make it, depending upon the law of the place where it is made. If valid there, it is, by the general law of nations, held valid everywhere (Story Confl. of L., 564; 2 Kent Com., 457-459, § 39). But to hold as a consequence of our enabling statutes, that married women, domiciled in States and countries where they are incapable of contracting, may carry on business here, or make com tracts which will be enforced in this State, would give rise to innumerable difficulties. Chancellor Kent, in noticing the exception to the general rule of the lex loot, that a contract made under one government and to be performed under another, is to be governed by the law of the country where it is to be performed, remarks that the exception is more embarrassed than any other branch of the subject, by distinctions and jarring decisions. Difficulties of this character, but infinitely greater in degree, would be the inevitable consequence of holding that married women who are non-residents of this State are entitled to all the benefits of our enabling statutes, and held to all the obligations incident to the enjoyment of such benefits. This view of the law would be decisive of this case, as the defendant, when this contract was entered into, as well as when the action was brought, was a resident of Pennsylvania.

But there is another objection to the recovery, of equal force. The plaintiff ’ s counsel assumes that the contract was made in this State. In this, I think, he is mistaken. The plaintiff was a resident here, and the negotiation for the engagement was begun here, but the contract in fact was made in Philadelphia. When negotiations for a contract are carried on between two parties living in different States, as in this case, partly by the interchange of letters, and partly by the oral communications of an agent of one of the parties, the contract is made in the State or place where it first took effect so as to become of binding obligation upon both parties. Now it appears from the letters that were interchanged, that the engagement of the plaintiff depended upon the result of what the defendant calls in her letter a “trial performance, to test,” in the language of the defendant, “the plaintiffs capabilities as a prima donna in the troupe.” If the plaintiff did not fail, to pursue the language of this letter, in the estimation of the public and the press, she was to be assured of her engagement. The letters of the plaintiff further show that she went on to Philadelphia with this understanding ; the language of the letter of November 10, 1867, being: “My daughter has no objection to the terms you offer.” A night was fixed for her debut in that city, in a character selected for her by the defendant; and, as appears by the letter of the defendant’s agent, her salary was to commence on her arrival in Philadelphia. The defendant knew of the plaintiff as a singer, only by reputation; she had never heard her, and hence this condition that her capabilities should be tested by a trial performance. If in this trial she failed in the estimation of the public and the press, the defendant was not bound to engage her. If she succeeded, then the contract took effect, and she was engaged as a member of the troupe for the residue of the operatic season. This is a matter in respect to which there was no conflict whatever in the evidence, and as there was to be no engagement unless this trial proved successful, none was entered into until the trial took place. The defendant was not altogether satisfied with the result of it; but assuming that the plaintiff and her father are right,—that she did not fail in the estimation of the public and the press,—that upon the occasion she fully came up to the test which the defendant required, and that the defendant, if competent to contract, was bound thereafter to employ her for the residue of the operatic season, and pay her the stipulated reward of fifty dollars per week,—the obligation, if any, arose in Philadelphia, where all the parties then were, on ¡November 28, 1867, the day of the trial performance. If I am correct in this conclusion, then no contract was made in ¡New York. If the defendant had been under no disability as a married woman, and was competent to contract, her agreement to engage the plaintiff, and to pay her the stipulated salary, would have taken effect in the State of Pennsylvania, and not in the State of ¡New York, and the validity or invalidity of. the contract, or rather her legal capacity to make it, would depend, not upon the law of ¡New York, but of Pennsylvania.

It is a general rule that the validity of a contract is to be decided by the law of the place where it is made, unless it is to be performed at another place, the rule of the common law being that the lex loci contractus is to govern—a rule that extends to, and embraces, the capacity of persons to contract (Story Confl. of L., 241, 242 [1], 242 [a], 243 [2] ; 2 Kent Com., 4 ed., 457, 458; Thompson v. Ketchum, 8 Johns., 189; Robinson v. Bland, 2 Burr., 1077).

The contract in this case was not only made in Philadelphia, but the performance of it was to begin at that place, and to be continued at Boston, in the State of Massachusetts. It may be inferred that it was the understanding, from the nature of such an engagement, that the plaintiff was to perform in this city, if the defendant brought her troupe here ; and it appears that the troupe did come here, after they had been in Boston, and there was some evidence to show that they performed here during the season ; but it is not very material, as the plaintiff’s recovery was for services rendered whilst she was in Boston. The contract was made in Philadelphia; the performance of it commenced there and was continued in Massachusetts, and in neither of these States, as we must presume, is such a contract of any validity.

It is a broad principle, qualified by some few exceptions, that a contract void in its inception at the place where it is made, cannot be enforced in the tribunals of another State or country (Story Confl. of L.,%% 64, 241, 242 [1], 242, 243 [2]). “If a married woman,” says Stoby (§ 64),. “is disabled by the law of her domicil from entering into a contract, the transaction will be held invalid, and a.nullity in every other country.” And the defendant being incapable, as we must presume, by the law of Pennsylvania, the place of her domicil, from entering into such a contract, it cannot be enforced against her here ; so that upon both grounds,— 1st. That the defendant was and is a non-resident of this State, and, therefore, not within the operation of our enabling statutes ; and 2nd. That that the contract was nugatory and void in the State where it was entered into,—this judgment should be reversed.

Loew and Yajst Bbttkt, JJ., concurred,  