
    MIRUAN SULZBACHER, Plaintiff and Appellant, v. PAULINE DAVISON, Defendant and Respondent.
    1. Contract in writing—how superseded.
    By contract not in writing inconsistent therewith, made subsequently thereto on sufficient consideration,
    n. Hiring of articles (bailment for hire) contract in writing of, may be superseded by subsequent contract not in writing of sale and purchase.
    1. Evidence, what sufficient to establish such subsequent contract so as to supersede the prior one.
    
      a. Where the contract of hiring valued the articles at a certain sum, and the hirer agreed to pay as rent a certain sum per month in advance, and that the latter might at any time remove the articles, refunding the money ;paid for rent for time not expired, and the latter, by agreement indorsed on the back of the contract of hiring, agreed to give a bill of sale to the hirer when the sum fixed in the contract of hiring as the value of the articles should have been paid in rent, provided the same should be paid in ten months from date, ift regular monthly installments as per agreement. Held,, that oral evidence that the hirer, after paying a certain amount in installments for rent, came to the latter, surrendered the various receipts held by her, and requested the whole amount to be put in one receipt, and said she would keep the articles and pay the balance as soon as possible, and within a specified time, and that thereupon the latter received the several receipts and gave instead thereof one for the whole amount, and allowed the amount paid for hire on account of the purchase, was, being uncontradicted, conclusive of a contract of sale and purchase superseding the piior one of hiring.
    HI. Married women.
    1. Evidence as to carrying on sepa/rate buisness.
    
    
      a. What sufficient to call for a verdict in an action against married woman that she carried on a separate business, and that the goods were sold for that business.
    See statement of case.
    IV. Dismissal oe complaint on trial aeter evidence closed on both sides.—Exception to.
    1. When judgment entered on will be reversed under such exception.
    
    
      a. When the dismissal is based on the want of evidence as to matters material to be proved, while in fact there is evidence upon them.
    1. The doctrine of the cases of Bidwell v. Lament, 17 How. Pr. Bep. 357, and of Marine Bank v. Clements, 31 M. Y. p. 33, is inapplicable to such a case.
    
      b. Where upon the proof a verdict of the jury against the plaintiff would have been against the evidence.
    
      Before Monell, Jones, and McCunn, JJ.
    
      Decided December 31, 1871.
    Appear from judgment.
    This action was brought to recover a balance due for goods sold and delivered. The defenses were a general denial, and coverture of the defendant.
    On the trial, the plaintiff on his direct examination testified, that he sold to defendant three hundred and thirty-one dollars’ worth of furniture, and that there was a balance of one hundred and one dollars and fifty cents due which the defendant had promised to pay. On his cross-examination it appeared that the first negotiations between the parties resulted as to one hundred and forty dollars’ worth of furniture in the following agreements:
    “ This is to certify, that I have hired and taken from M. Sulzbacher, lío. 135 Bleecker street, furniture. One walnut bedstead, seventy dollars; one turkish easy chair, in silk reps, seventy dollars ; valued at one hundred and forty dollars ; for which I agree to pay the said M. Sulzbacher the sum of fifteen dollars per month rent in advance, and all charges of delivery and return of the same; keeping it in good order, at my expense; the hiring to continue until I notify him to remove it. I also agree, that if the said furniture, by fire, or otherwise, be partially or wholly destroyed, to pay the amount of damages sustained thereby. I further agree, that I will retain the said furniture for my own use, and that I will not underlet it for any purpose whatever, nor shall it be removed from the premises now occupied by me, hTo. 11 West 39th street, except on account of danger from the elements, without the written consent of said M. Sulzbacher; said parties to be at liberty to remove said furniture at any time, provided moneys paid for time not yet expired, if any, be refunded. No agreement of sale of said furniture is implied hereby, nor shall a sale or purchase of it be deemed valid, without a written receipt from said M. Sulzbacher therefore.
    “ In witness whereof, I have hereunto set my hand in the City of New York, this 5th day of March, 1869.
    (Signed,) “ PAULINE DAVISON.
    “ Witness,
    M. Sulzbacher.
    H. Sulzbacher.”
    f TJ. S. Bev. Stamp, l ■} $ cents. ) .
    
      (Printed on hack.)
    
    “I hereby agree to give a bill of sale of the within furniture to Mrs. Davison, or order, when she shall have paid the sum of one hundred and forty dollars in rent, provided the same is paid within ten months, March 5th, from date, and in regular monthly installments, as per agreement; payments to be made at No. 135 Bleecker street, New York.
    (Signed,) “M. SULZBACHER.”
    And as to one hundred and ninety-one dollars, in agreements precisely the same as the above, with the exception of the description of the articles, their respective prices, their total valuation, and the date of the agreement, which was Dec. 3d, 1868.
    It also appeared that on October 11th, 1869, the •.ai-,wing receipt was given:
    “ $206,00. October 11, 1869.
    Received from Mrs. Davison two hundred and six dollars in installments.”
    On his re-direct examination plaintiff testified :
    Q. What is the date of the agreement ?
    A. December 1st, 1868, and March 5th, 1869.
    Q. What further transaction did you have in regard to the furniture after that date ?
    
      A. Mrs. Davison came to me with the receipts I had given her, and requested me to put the whole amount in one receipt, which I did; which is the receipt for two hundred and six dollars; she then said that she would keep the fiirniture, and pay me the balance as soon as possible. When I gave her the receipt for two hundred and six dollars, she returned the small receipts ; I allowed her all she had paid for the hire on account of the purchase. She said she would pay the balance within a specified time, and would keep the goods ; I saw her afterwards, and she promised to pay.
    Q. Had you any further transaction in regard to the furniture ?
    A. Ho, sir.
    Q. The small receipts she gave up were for payments of installments on these agreements ?
    A. Yes, sir.
    The delivery of the furniture to the defendant was proved.
    The plaintiff then rested, and defendant moved to dismiss the complaint on the ground that there was no evidence of a sale, which motion was overruled for the present. Ho further evidence was given by either party on the issue as to a sale.
    On the issue of coverture, the defendant testified that she was married on the 23rd of December, 1861 or 1862, and that her husband was still living. On cross-examination she testified that she was carrying on a boarding house, that she signed the lease of the house, that she sometimes hired out the rooms and made agreements with the boarders, and sometimes received the money and sometimes her husband did, that she never told plaintiff the business was her own.
    On her re-direct examination, in answer to the question, “The money you receive from boarders you receive as the agent of your husband?” she said, “I do.”
    
      In rebuttal, plaintiff and his son both testified that in December, 1868, at the time of the making of the above written instruments made in December, 1868, defendant told plaintiff that she carried on the business of a boarding house in her own name, that it was her own business, and her husband had nothing to do with it; and plaintiff further testified that he requested her husband to sign the paper, when she said her husband had nothing to do with the boarding-house, that everything she purchased was her own, and that her husband had a separate business.
    The testimony was then closed on both sides.
    Defendant moved to dismiss the complaint, on the ground that there was no proof of a sale; also, that it was proved the defendant was a married woman, living with her husband, and no evidence that she carried on business in her own name; or that this was a debt con: tracted in relation to her business.
    Motion granted; defendant excepted.
    Thereupon judgment was entered in favor of defendant against plaintiff, for the sum of seventy-two dollars and forty-seven cents, costs.
    From this judgment defendant appeals to the general term.
    
      George Carpenter, attorney, and D. T. Walden, of counsel for appellant, urged:
    I. In deciding upon the propriety of a nonsuit, the court is bound to assume the truth of the facts which the testimony of the plaintiff legitimately conduced to prove, though their correctness be controverted by the defendant’s witnesses. The party nonsuited is entitled, upon appeal, to have every doubtful fact found in his favor (Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. 492; Merritt v. Lyon, 3 Barb., 110; Ernst v. Hudson R. R. Co., 35 N. Y. 25 41), per Porter, J.
    
      II. The plaintiff testified that he sold the goods to defendant; and although the effect of that evidence may have been impaired by the cross-examination, yet, on examination by the court, he testifies, that when he gave the receipt for two hundred and six dollars, viz., October 11, 1869, she agreed to keep the goods and pay the balance. Henry'Sulzbacher, the plaintiff’s brother, testifies, that they allowed the amount paid on the hiring towards the purchase, and fixed the balance, and she promised to pay it. This evidence was all in before plaintiff rested, and that the motion was then denied, it is fair to assume that the court decided it was sufficient to go to the jury on the question of sale. Subsequently, defendant was sworn, and was not interrogated as to a sale or promise by her to pay, as stated by the plaintiff. She does not contradict the plaintiff’s testimony as to a sale. The evidence appears to have been directed to the question whether she kept a boarding-house. There was evidence sufficient for a jury on the question of purchase, and the dismissal, if on that ground, was erroneous.
    III. The averment and proof of coverture was no defense, if the defendant was carrying on the business of boarding-house keeper, and these goods were purchased by her for that business (Barlow v. Beers, 35 Barb. 78 ; Badgley v. Decker, 44 Id. 577). And the question whether she was carrying on that business— whether it was hers or not-—was a question which should have been submitted to the jury, if there were any competent evidence in favor of the plaintiff on that issue (Abby v. Deyo, 44 Barb. 374).
    IV. There was evidence, competent and in every respect admissible, tending to prove, and which did prone, that defendant was carrying on .the business of keeping a boarding-house, when she purchased the articles, and that this furniture was for .that business.
    V, Whatever difference there may be as to the force and weight of the evidence, and as to whether the same was met, contradicted or overcome by the defendant, it should have been submitted to the jury ; and its withdrawal from them by a dismissal of the complaint' was error, for which a new trial must be granted.
    
      Henry C. Denison, attorney and of counsel for respondent, urged
    I. The contract was in writing, and is explicit, and provided for a sale afterwards to be made if certain amounts were paid. In the mean time, the contract was only one of hiring, and hence this action for goods sold and delivered will not lie, and therefore the plaintiff was properly nonsuited. The contract is that the hiring shall continue until she notifies him to take it away. A positive agreement to keep it on the premises and not underlet. No agreement of sale to be implied, nor shall a sale or purchase of it be deemed valid without a written receipt from said M. Sulzbacher therefor.
    II. The right reserved to the plaintiff to take the furniture at any time, provided the money paid as rent for an unexpired month is refunded, and the. agreement to give a bill of sale, all prove conclusively that there was no sale in presentí. The complaint is for a balance due only for goods sold and delivered. Here being a specific written contract, and no pretense or claim of a new agreement or bill of sale afterwards, there is an entire failure of proof to support the cause of action. If anything was due for rent, that would be an entirely different claim, and depend on entirely different principles.
    III. If the plaintiff wished anything but a clear regular sale of the goods submitted to the jury, it was his duty to request it at the time. He °can take, no ground here not urged at the trial (Bidwell v. Lament, 17 How. Pr. 357; Marine Bank v. Clements, 31 N. Y. 33).
    IY. The defense of coverture was also a complete defense. There is no proof that she ever had a separate estate. And not a particle of evidence that these goods were for her separate business if the faint evidence of admission furnish any evidence of a separate business. As she lived with her husband, she had not any such business as would make her liable (Smith v. Allen, 1 Lans. 101; Schmidt v. Corta, 3 Abb. Pr. N. S. 188).
    Y. If the faint admissions of the plaintiff that she carried on business is evidence, then there is no evidence to show that this was a contract made in connection with her business. The statute only makes the wife liable for debts contracted in connection with the business carried on by her; and before the plaintiff can recover, he must show either that the consideration for which the contract was made was for the benefit of her separate estate, or that the- contract was made in connection with the business carried on (Yale v. Dederer, 22 N. Y. 450; Laws 1860, chap. 90, § 8, p. 159).
   By the Court.—Jones, J.

I am in favor of reversing the judgment and ordering a new trial.

There was error in dismissing the complaint. The court, in granting the motion, necessarily held that there was either no evidence of a sale, or no evidence either that defendant carried on business in her own name, or that the debt was contracted in relation to her business. Having held there was no evidence, there was, of course, nothing in view taken by the court to submit to the jury.

The court did not decide on the assumption that certain facts were proved, which would have brought the case within Bidwell v. Lamont, 17 How. Pr. 357, but on the ground that there was no evidence of certain facts, which is an entirely different thing.

Even under the cases of Bidwell v. Lamont, and Marine Bank v. Clements, 31 N. Y. 33, we can only infer, in support of the decision, those conclusions which the jury would have been warranted to draw ; and, from the evidence in the case, we think the jury would not be warranted in finding that the defendant did not carry on business in her own name, or that the articles were not purchased and furnished for that business. Such a finding would have been against the evidence.  