
    Mordecai L. Marsh, Respondent, v. Ely Hoppock, Appellant.
    1. Where a married woman owns fixtures, implements and machinery, adapted to the manufacture and distillation of spirits, an'd her husband, under a written power of attorney from her, contracts as her agent with a third person, (the defendant) to manufacture whiskey, on which the defendant is to advance and which he is to sell, and the business is prosecuted pursuant to such agreement; and is transacted wholly by the husband with the defendant, such business is in fact and in law the business of the husband.
    2. In a suit by the wife’s assignee of the balance claimed to be due to her in respect to such business; to recover such balance, it is error to disallow to the defendant upon a statement of accounts in relation to it, moneys advanced by the defendant to the husband in the course of the business; upon the ground that the power of attorney under which he acted did not authorize him to obtain such advances on her account.
    (Before Hoffman, Slosson and Pierrepont, J. J.)
    Heard, April 12;
    decided, July 3, 1868.
    This action comes before the Court at General Term, on an appeal by the defendant from a judgment in favor of the plaintiff, entered on the report of a referee.
    Mordeoai L. Marsh, the plaintiff, sues as assignee of Frances Jackson. At the time the contract (hereinafter set forth) was made, under which the business was done out of which this controversy arose, Frances Jackson was a married woman; and the contract was made by her, by her husband Thomas Jackson as her attorney, of the one part, with the defendant of the other part.
    The complaint avers, among other things, that from April, 1851, until some time in March, 1853, “the said Frances Jackson delivered or caused to be delivered to the said defendant, Ely Hoppock, for the purpose of sale, a large quantity of whiskey, known as Irish and Scotch whiskey, upon each and every gallon of which said whiskey so delivered as aforesaid,' the said defendant promised and agreed to advance and pay to the said Frances Jackson the sum of eighty-five cents, and upon the sale of said whiskey the said defendant promised and agreed to render to the said Frances Jackson a full and true account of the sale and disposition of said whiskey, so that the said Frances Jackson might be able to judge of the result thereof, and pay to her what was due upon the balance of such accounts.” It alleges that the defendant rendered accounts from time to time, describes them and avers that he rendered no other accounts, and that those rendered are not full or accurate. The complaint prays for a judgment, that the defendant account; and that he'pay such balance as may be ascertained upon such accounting to be due to the plaintiff, as assignee of said Frances Jackson.1
    The defendant in his answer admits, “that the said Thomas Jackson as the attorney and agent of his said wife, delivered large quantities of said whiskey to this defendant for sale upon commission, and received large advances and payments from this defendant therein, between April 1, 1851 j and July 23, 1853,” and claims, that a balance of $755.25 is due to him, the defendant.
    He further avers, “that he made returns and accounts of sales from time to time, to said Thomas Jackson, with whom he transacted said business.” . .
    “ And the said defendant admits that he has furnished returns to said Frances Jackson, since the death of her husband," of the amount of sales, receipts, and expenses attending said sales of whiskey, which returns and accounts were correct when so furnished; but he denies that such statements were the only accounts ever furnished, as said Thos, Jackson, during his lifetime, received frequent accounts and statements as her agent and attorney.” . . .
    “ And the said defendant further says, that he is ready and willing, and always has been ready and willing, to account to and with the said Frances Jackson, and any person duly authorized by her, in respect to said transactions, and submits to any reference of his accounts which may be directed by this Honorable Court, and prays that said complaint may be dismissed, with costs, to be paid by the said plaintiff.”
    The referee found as facts, “that from the month of April, 1851, and for some time prior to that time, Frances Jackson, then of the city of Mew York, was the owner of certain fixtures, implements, machinery, and other property, then, and subsequent thereto, being situate at Mo. 68 Seventh avenue, in the city of New York; and that, from the month of April, 1851, to the month of March, 1853, the property and premises were used by her in the manufacture and distillation of spirits, known as Irish and Scotch whiskey. That, during the period last mentioned, Frances Jackson was a married woman, viz.: the wife of Thomas Jackson, who was then living and residing with his said wife Frances Jackson in the city of New York. That the defendant knew Frances Jackson, and on March 27, 1851, the defendant entered into an agreement with Thomas Jackson, the husband of said Frances, which agreement was produced, and is in the words and figures following:
    “Terms of agreement between Thomas Jackson and Ely Hoppock, both of the city and county of New York.. Thomas Jackson is to manufacture Irish and Scotch whiskey, of a quality equal to that heretofore on the premises known as No. 90 Seventh avenue, fourth proof, and to be delivered to Mr. Hoppock in imported puncheons, Irish and Scotch, and placed in his cellar in good order; said Jackson is to pay storage, insurance, labor, etc., etc.; said Hoppock is to advance his notes at four months date, from time to time, on the delivery of said whiskey, as aforesaid, at the rate of eighty-five cents per gallon, for which he is to receive from said Jackson ten per cent commission on gross sales of said whiskey, for advancing, selling, collecting, and guaranteeing sales. Interest is to be charged by said Hop-pock in case he should be out of funds, at the rate of seven per cent per annum.
    “ F. Jackson,
    “per Thos. Jackson, Att’y,
    “ Ely Hoppock." :
    “ That Thomas Jackson acted as the agent of his wife Frances, under and by virtue of a power of attorney, under her hand and seal, which power of attorney was produced in evidence, and is in the words and figures following:
    “Know all men by these presents, that I, Frances Jackson, of the city and county of New York, do hereby ordain, constitute, and appoint Thomas Jackson, of New York city, my true and 'lawful attorney .and agent, for me and in my name to purchase grain of any and every description, malt; if required for the manufacture of whiskey known as Irish and Scotch malt whiskey, to dispose of the same to the best advantage, for- my benefit, to sue for, recover, and receive from all persons whatever all sums of money and debts due or to become due to me, and all claims and demands, and to give sufficient acquittances therefor, and to adjust, settle, or compound all debts or demands due of to become due to me, and to institute proper suits for the recovery thereof, and the same to pursue to final judgment and execution, and I hereby ratify and confirm what my said attorney or agent shall lawfully do or cause to be done in the premises.
    “ In witness whereof, I have hereunto set my hand and seal, this third day of April, 1851.
    “ Signed, Frances Jackson.”
    That an indorsement or agreement was made on the back of the agreement of March 27, 1851, signed by Thomas Jackson, as attorney for Frances Jackson, which was produced and read in evidence; it is as follows:
    
      “ This is to certify that I hereby agree to release Mr. Ely Hoppock from guaranteeing any sales of my whiskey that he has made or shall hereafter make. And in consideration of not being able to sell all my whiskey the first year, I agree to pay said Hoppock ten per cent commission, for advancing drafts, selling the whiskey, and collecting bills of same.
    “F. Jackson,
    “ per Thos. Jackson, Att’y.
    “ The words 1 to sell ’ inter-1 lined before signing. j
    “Witness, John Quackenbush.
    “Hew York, January21, 1853.”
    The referee also found that the business of the distillery was carried on, as contemplated when these contracts were made, and that the defendant made certain advances to Thomas Jackson in the course of the business, and charged the same on account.
    The referee also found that certain of the items charged in account by the defendant to Frances Jackson, amounting to $1,369.44, being for moneys paid to Thomas Jackson, or to others by his order, were not properly chargeable to her, on the ground that the power of attorney of the date of April 3, 1851, did not authorize Thomas to receive, or order them, paid on her account, and disallowed the same.
    For a similar reason he also disallowed a charge of $1,000, for defendant’s acceptance of that amount delivered to Thomas, on his executing as her attorney a mortgage to defendant, on the credit and security of which such advance was made.
    He found a balance of $1,278.60, due from the defendant, to the plaintiff as assignee of Frances Jackson, and reported that he was entitled to judgment therefor, with costs. Judgment having been entered upon the report, the defendant appealed from it to the General Term.
    
      Charles W. Sandford, for the appellant, insisted that the business was, in law and in fact, the business of Thomas Jackson, the husband; that a married woman cannot carry on business through the agency of her husband. It must be considered his business and treated accordingly. Consequently the items charged to Mrs. Jackson and disallowed by the referee, were erroneously rejected.
    That the plaintiff, Marsh, if he has any ground of action, must assume all the transactions of Jackson in the business.
    
      Barrett & Brinsmade, for the respondent.
    Thomas Jackson acted as the agent and attorney of Frances Jackson, and every verbal and written agreement between him and the defendant, purports to have been made under and by virtue, of the power of attorney under the hand and seal of Frances Jackson.
    The defendant must therefore account upon the basis of his contract, treating her as the principal, and Thomas as her agent. The report is right, rejecting such acts of the husband as the power of attorney did not authorize, and his principal has not sanctioned.
   By the Court.

Pierrepont, J.

—The referee evidently regards the relation of Thomas Jackson to Frances, so far as relates to this business, the same as though the two were strangers to any alliance, and one the mere agent of the other.

Such is not our view of the meaning of the statutes relating to married women. The parties were husband and wife living together. It does not appear that the wife had a separate estate from which she derived an income; and it does appear that she advanced no money whatever in the business.

The husband carried on the business, and it was his, and not that of his wife. Signing the contract of March, 1851,

“F. Jackson,”
“ Per Thos. Jackson, Att’y,”

did not in legal view make the business which Thomas Jackson carried on under the agreement, the separate business of his wife.

The items in the defendant’s account, which the referee rejects, were mostly cash advances made by the defendant, (in the course of the business,) to Thomas Jackson.

A construction of the acts of 1848 and of 1849 has been given by this Court, quite inconsistent with the rulings of the referee in this case. (Switzer v. Valentine, 4 Duer, 96; Freeman v. Orser, 5 Duer, 476.)

This fundamental error in considering it the sole and separate business of the wife, in which the husband was but a mere agent, having no personal interest, runs through the entire case.

A new trial must be granted, with costs to abide the event.

Rule of reference discharged.

Judgment accordingly. 
      
       See Burger v. White, 2 Bosw., p. 92.
     