
    Miriam Feran vs. John F. Rudolphsen.
    A husband is liable upon a contract made by his wife in the prosecution of business on her separate account under the Gen. Sts. c. 108, §§ 3, 5, if neither of them has filed a certificate under the St. of 1862, c. 198, whether or not the person contracting with the wife did so upon her sole and exclusive credit.
    Contract on an account annexed for services rendered as a school-teacher from September 23,1867, to June 29, 1868. Writ dated February 28, 1870. The answer denied that the plaintiff rendered services for the defendant or by his request, and that he ever promised to pay for them, or in any way became liable for them; and alleged that, if such services were rendered, it was upon the sole request and credit of the defendant’s wife, and while she, as the plaintiff knew, was doing business on her sep orate account, without the defendant’s consent and against his wishes and directions.
    At the trial in the superior court, before Brigham, C. J., the plaintiff and the defendant were the only witnesses, and theii testimony tended to show that the defendant’s wife kept a private school, “on her own accomit,” in the defendant’s dwelling-house in Boston, and that the services sued for were rendered in the school.
    The plaintiff testified that the defendant’s wife published the following advertisement concerning the school; and that the defendant gave instruction in music to the pupils in the schoolroom : “ French and English School. Madame Lafitte Rudolph-sen (from Paris) will open a school for masters and misses from five to ten years of age, at her residence, No. 13 Decatur Street, September 23, 1867. The usual English branches will be taught by a competent English teacher, who has been engaged for that purpose. Instruction in the rudiments of music, in vocal culture and solfeggio, will be given by Professor J. F. Eudolphsen, without extra charge.” The defendant testified that he never authorized such an advertisement, or gave any such instruction.
    The plaintiff admitted “ that she made her contract exclusively with the wife of the defendant; that the wife promised to pay her; that she did not then know, and had not then seen the defendant ; that she expected and understood that she was to look to the defendant’s wife only for her pay, and was not to look to the defendant for it; that the wife had herself made all the payments she had received on account of said services ; and that since the services were completed she had several times asked the defendant’s wife to pay her, and had never at any time requested payment of the defendant, or sent him any bill for her services, or even at any time spoken to him about her pay, or made any claim whatever upon the defendant; ” and there was no evidence tending to qualify any of these admissions. But the plaintiff contended that the defendant was liable to her, by reason of the fact that no certificate of the wife’s business was ever filed in the office of the city clerk, in conformity with the St. of 1862, c. 198,-
    
      The judge instructed the jury “ that if the defendant’s wife, the defendant objecting, entered into a sole and separate business, and the plaintiff made a contract with the defendant’s wife in relation to that separate business, with notice that the defendant objected to such separate business, and in making such contract with the wife looked to her for the fulfilment of the same, she could not recover against the husband.” The defendant requested him to instruct them further, “ that if the contract was made with the defendant’s wife only, and upon the sole and exclusive credit of the wife, the defendant would not be liable, although the certificate referred to had not been filed; and that the liability of the husband might be released or waived expressly by the plaintiff, or by her acts and conduct, implying that she would not look to the defendant for her pay.” But the judge declined to give the additional instructions thus requested. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.
    
      A. B. Ooffin, for the defendant.
    
      J. B. Fallon, for the plaintiff.
   Ames, J.

The instructions requested by the defendant we?-* not appropriate to the present state of the law of this Commonwealth in relation to the rights and liabilities of husband and wife, and were therefore properly refused.

Under the Gen. Sts. e. 108, §§ 3,5, a married woman might carry on any trade or business in the same manner as if she were sole ; and her contracts in such business were made binding upon herself and her separate property, and not binding upon her husband and his property. The question of fact, whether the contract and the business should be held to be his or hers, might be, and often was, embarrassing and complicated; and the legislature found it advisable to simplify the matter, in the mode pointed out by the St. of 1862, e. 198. According to that statute, the right of any married woman to do business on her own separate account remains unimpaired; but in order to secure the property employed in such business against the risk of being attached by creditors of her husband, she is required to file a certificate with the town or city clerk, giving the particulars required by the statute. On filing such a certificate, she protects her stock in trade from that risk, and relieves her husband from all liability on her contracts. On his part, he is bound, if she should neglect that precaution, to file such a certificate himself; and if no such certificate be filed, “the husband shall be liable upon all contracts lawfully made in the prosecution of such business,” that is, the wife’s separate business, “ in the same manner and to the same extent as if the same had been made by himself.”

The only interpretation which can be given to this statute is, that the contracts of the wife in relation to her own separate business are to be considered as binding upon the husband, unless either she or he shall have fulfilled a prescribed and not very onerous condition. It will be of no avail to prove that she was not acting as his agent, or with his consent, but that the contract was her own, in relation to her separate business and upon her exclusive credit. The defendant’s responsibility became fixed, in this case, by the failure to file the certificate. He has failed to fulfil the condition without which it was impossible for him to make any effectual disclaimer of the statutory liability. The law has established a rule on this subject, to which he has not conformed. The case presents no evidence of an express waiver, by the plaintiff, of her right to look to the husband for the debt ; and none can be implied from the evidence reported, without entire disregard of the statute. The instructions to the jury having been quite as favorable to the defendant as he could properly ask, his Exceptions are overruled.

N. O. Berry, for the appellee.

L.M. Child, for the appellant.  