
    John W. Dickerson, App’lt, v. Mary E. Rogers, Resp’t.
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    1. Married Women—Authority to make contracts—Liability on.
    In .the cases where the statute confers upon a married woman the authority to make contracts, it can be either express or implied, and made personally or by agent, upon contracts within the statute, and for debts thus created her separate estate is chargeable by law.
    3. Same—Sales—When married woman not liable eor goods sold her HUSBAND.
    The action was brought to recover for a quantity of meat alleged to have been sold and delivered to defendant, to be used in the hotel business. The defendant did not personally contract with the plaintiff for the meat. It was with defendant’s husband that the negotiations were had, and from whom payments on account were received. He held himself out to be the proprietor of the business. There was no evidence that defendant ever attempted to interfere with or control her husband’s management of the hotel; that she ever authorized him to act for her, or that she pretended at any time to he carrying on a separate business, or that any credit was obtained by her husband in her name or ostensibly on her account Held, that plaintiff cannot recover.
    Appeal from an order of the general term, second department, reversing a judgment entered on the report of a. referee, in favor of the plaintiff for $2,091.73 damages and costs.
    
      E. Countryman, for app’lt; Bichará L. Sweezy, for resp’t.
   Parker, J.

The referee, before whom the case under consideration was tried, found, in substance, as matters of fact: That the defendant was a married woman; that between April, 1878, and April, 1880, she was the owner of a valuable hotel property, which she carried on on her sole and separate account, and that between those dates the plaintiff sold and delivered to her a large quantity of meat, on account of which there remained unpaid the sum of $1,486.87, besides interest.

The referee thereupon directed judgment in favor of the plaintiff for such balance, and interest.

The judgment entered upon such report was reversed by the general term, and the plaintiff appealed to this court, stipulating in his notice of appeal that if the order appealed from be affirmed, judgment absolute shall be rendered against him.

As it appears in the body of the order appealed from, that the reversal was had both upon the questions of fact .and law, the determination of the general term must be reviewed upon the questions of fact as well as the questions of law. At common law, a married woman did not have the authority to make contracts. Many of her disabilities in that regard have been removed from time to time by statutory enactment. Still, prior to the passage of the enabling act of 1884 (Chap. 381, Laws of 1884), which was subsequent to the commencement of this action, the wife’s ability to make contracts was limited, so she could only contract in cases where authority had been expressly conferred by statute. She could bind herself by contract, where:

First. The obligation was created by her in or about carrying on her trade or business; or,

Second. The contract related to or was made for the benefit of her separate estate; or,

Third. Intention to charge her separate estate was expressed in the instrument or contract by which the liability was created; or,

Fourth. The debt was created for property purchased by her. The Saratoga County Bank v. Pruyn, 90 N. Y., 250. Within such limits she was permitted to contract, if she were a feme sole.

The contract could be express or implied, and made personally or by agent.

She could authorize her husband, as well as any other person, to act as such agent. Upon contracts thus made, and for debts thus created, her separate estate is chargeable by law.

The question, therefore, is whether the evidence before us establishes a liability on the part of the defendant to the plaintiff within the limits of responsibility on the part of a married woman.

The derendant did not personally contract with the plaintiff for the meat, for the value of which he seeks to charge her in this action, It is not pretended that she ever promised to pay the plaintiff therefor, either orally or in writing. She did not in any manner attempt to induce the plaintiff to furnish meat. On the contrary, it appears from the plaintiff’s testimony that he went to the defendant’s husband and solicited his custom.

Upon that subject he testified as follows: “ I had a conversation with Mr. Rogers at the house; I told him I would like to sell him some meat; he said he was buying of the butcher there, and to come in again, so I came in the next day or two; I sold him some meat and that was the first charge put on the book * * The Amityville butcher supplied him mostly at that time; that was in the spring; in about a month or six weeks I began to supply him with most of his meats * * *. I don’t recollect any particular conversation further; he would say what meat he wanted and I would deliver it; I pursued the same course of business the following year of 1879 * * *. I received payment from Mr. Rogers from time to time, as stated on the bih.”

It was with Mr. Rogers, therefore, that the negotiations were had and from him the payments on account were received. Plaintiff knew that defendant owned the hotel building and premises, and with that knowledge he dealt with Mr. Rogers who did not pretend to be acting as agent, but, on the contrary, held himself out to the public as the proprietor of the business.

The plaintiff having contracted with Mr. Rogers as principal could only recover in this action by showing that Rogers was actually an agent for an undisclosed principal, to wit, this defendant; that she was in fact engaged in carrying on the hotel business on her own account and for her own benefit.

Upon the plaintiff rested the burden of affirmatively establishing such fact. This, we think, he failed to do. It was proven that she owned the property; resided there with her husband and four children; did such work about the hotel as is customary for the wife of a hotel proprietor, and that she did not lease the hotel to her husband. On the other hand it appears that the husband held himself out to the public as the proprietor, in various ways. The business cards of the house were signed, “J. M. Rogers, Prop.” He assigned the guests their rooms, purchased all supplies, employed the servants, received the money due from guests, and disbursed it as he saw fit.

There is no evidence that the defendant ever attempted to interfere with or control her husband’s management of the hotel. That she ever authorized him to act for her or that she pretended, at any time to be carrying on a separate business or that any credit was ever obtained by her husband, in her name, or ostensibly on her account.

A careful consideration of the evidence, to which we have but briefly alluded, seems to us to lead irresistibly to the conclusion that this defendant did not undertake to carry on a separate business, but, on the contrary, gave to her husband, as she lawfully might, the use of her property and her service in the conduct of a business in his" own name.

The order appealed from should be affirmed, and the defendant have judgment absolute, dismissing the complaint.

All concur. 
      
       Affirming 39 Hun, 657 mem.
      
     