
    Catherine L. Desmond vs. Bartholomew M. Young. Patrick H. Desmond vs. Same.
    Middlesex.
    November 8, 1898.
    March 4, 1899.
    Present: Field, C. J., Holmes, Morton, & Lathrop, JJ.
    
      Husband and Wife — Ownership and Carrying on of Business — Agency — Certificate — Attachment — Exemption.
    
    Where an entire business is owned by a married woman, and carried on by her husband with her assent, he must be considered her agent; and if she has failed to file the certificate required by Pub. Sts. c. 147, § 11, when a married woman does business on her separate account, the stock in trade is subject to attachment by his creditors.
    The tools and implements used by a person engaged in the business of buying and selling merchandise are not exempt from being taken on execution, under Pub. Sts. c. 171, § 34, cl. 6.
    Two actions, the first being replevin of certain personal property, consisting of the stock in trade in a grocery and meat market in Malden, and the second being tort for the conversion of other articles of property used in the business. Writs dated March 6, 1897. The cases were tried together in the Superior Court, before Fessenden, J., who directed the jury to return a verdict for the defendant in each case ; and the plaintiffs alleged exceptions. The facts appear in the opinion.
    
      A. V. Lynde & W. P. Harding, for the plaintiffs, submitted the case on a brief.
    
      E. R. Thayer, (D. A. Ellis with him,) for the defendant.
   Lathrop, J.

1. The question in the first case is whether, on the evidence, the business was carried on by the plaintiff on her separate account. If this question is answered in the affirmative, then the stock in trade was liable to be attached by her husband’s creditors, as no certificate was filed by her as required by the Pub. Sts. c. 147, § 11. According to the testimony given by the plaintiff and her witnesses, she had the absolute ownership of the contents of the shop and its earnings, while the business was ostensibly carried on in the name of her husband. One McMahon testified that, after the conveyance by him to the plaintiff, her husband “ remained in the store and did business for Mrs. Desmond up to the time of the trial; that he continued to act for Mrs. Desmond in the store; that at the time of the levy, on March 6, 1897, Mrs. Desmond carried on the business in the store; that Desmond did the actual work in the store and Mrs. Desmond took part in it; that Desmond bought the goods for it; and that Desmond and Mrs. Desmond both sold and delivered goods from the store.”

Desmond testified that from 1888 to 1891 he ran the business for McMahon ; that after McMahon turned over the property to Mrs. Desmond, he, Desmond, used his wife’s money to replenish the goods in the store, “ and we sold them and paid the bills with the money, and supported the family; that the sign over the door was in Desmond’s name, and remained so till the time of the trial; that the goods for the store were all bought in his name, and all bills were made out to him; that in selling the goods the bill-heads were in his name; that this was all the same when McMahon held the property; that no bills were in Mrs. Desmond’s name; that Mrs. Desmond had nothing to do with the business except furnishing the money, and sometimes coming down and helping him a little in putting up orders; . . . that the stock was bought with Mrs. Desmond’s money and for her, but in his name.”

Mrs. Desmond testified that she had “ heard the testimony of McMahon and her husband, and that it was correct; that she helped her husband a great deal off and on in the store, and had always done so ; that she put up groceries, sometimes cut meat, sold goods when her husband was not there, and sometimes, especially Saturday evenings, was in the store with him selling goods; that her husband did all the business; that all she did was to help him when there was a pressure on Saturday, or at some other times; that he bought all the goods, and carried on the whole concern; and that she took no part in it except this assistance.”

Mrs. Desmond was the owner of the real estate where the business was carried on, and owned the stock in trade, and had all the capital and income. There is no evidence that her husband paid any rent for the use of the shop; and we are of opinion that, on the evidence, the business must be considered in law as carried on by her, within the Pub. Sts. c. 147, § 11; and that her husband was her agent.

The statute in question was first enacted in 1862. St. 1862, c. 198. In Chapman v. Briggs, 11 Allen, 546, it was said by Chief Justice Bigelow : “ The object of the statute was to afford the means of ascertaining in which of the two persons, apparently in the possession and use of property in carrying On any kind of trade or occupation, the title is vested, so that all having occasion to transact business with either may regulate their. dealings accordingly.”

In a later case it has been held that, if a married woman carries on a boarding house without filing a certificate, debts due her for board may be attached by a creditor of her husband. Dawes v. Rodier, 125 Mass. 421.

The case of Snow v. Sheldon, 126 Mass. 332, is like, in many ■respects, the ease at bar. A husband conveyed a farm to his wife through a third person, but remained on the farm and managed it after the conveyance as before, and the produce of the farm was used for the support of the family. The wife did not file any certificate, and it was held that the personal property on the farm, bought by the wife and used in carrying on the business of the farm, could be attached by a creditor of the husband. See also Feran v. Rudolphsen, 106 Mass. 471.

The cases of Proper v. Cobb, 104 Mass. 589, Wheeler v. Raymond, 130 Mass. 247, and Lockwood v. Corey, 150 Mass. 82, are clearly distinguishable from the case at bar. In Proper v. Cobb, a woman before marriage bought a colt for her own use. After marriage, she bought with her separate money standing trees, and had them cut down and prepared as building material for the purpose of erecting a house, to be occupied by her and her husband, on land which she intended to purchase. It was held that she'was not carrying on business within the meaning of the statute.

In Wheeler v. Raymond, a wife who permitted her husband to use in his business of keeping a livery stable three horses, two buggies, and one harness was held not to be carrying on business within the statute. It appears, however, that these articles did not constitute the entire stock in trade. The opinion speaks of the articles as “a number of horses and carriages.” The number and kinds are obtained from the original papers in the case.

In Lockwood v. Corey, the purchase of a single sow, with a view to her natural increase, was held not to be doing a business within the statute.

In Snow v. Sheldon, 126 Mass. 332, it was said by Mr. Justice Ames, “ There may be partial uses of land belonging to a married woman on so small and trivial a scale as not to come within the description of a separate business within the meaning of the statute.” It is also true that the amount of property may be so small and trivial that it is not to be regarded as a separate business. Under one or the other of these heads the cases of Proper v. Cobb, Wheeler v. Raymond, and Lockwood v. Corey fall. Where, however, the entire business is owned by a married woman, and carried on by her husband with her assent, he must be considered her agent; and, if there is no certificate, the stock in trade is subject to attachment by his creditors. In the first case, therefore, the exceptions must be overruled.

2. In the second case the question is whether certain articles, which the plaintiff testified were bought with his own money and were necessary in carrying on his business, were exempt from being taken on execution, under the Pub. Sts. c. 171, § 34, cl. 5. It is clear that they were not exempt. This statute is intended, as said by Mr. Justice Gray, in Wallace v. Bartlett, 108 Mass. 52, “ for the protection of mechanics, artisans, and handicraftsmen, and others whose manual labor and skill afford means of earning their livelihood.” But it does not apply to those engaged in the business of buying and selling merchandise. The plaintiff in that case, as in the one before us, was a dealer in meats and groceries, and it was held that his tools and implements were not exempt.

The result is that in each case the entry must be,

Exceptions overruled.  