Guttmann v. Scannell

Terry, .J., delivered the opinion of the Court—Murray, C. J., concurring. This is an action instituted by the plaintiff, who is a married woman, and sole trader under the act of 1852, to recover the value of certain goods seized by defendant, under an execution against Samuel G-uttman, the husband of plaintiff. It appears that Samuel G-uttman was engaged in the manufacture and sale of clothing; that he became involved, and that [458] his whole stock in trade was sold under execution; that shortly afterwards his wife availed herself of the provisions of the act “ to authorize married women to transact business in their own names as sole traders,” and commenced business in her own name, upon money partly borrowed by herself for the purpose, and partly received by her from boarders, before she became a sole trader. The Court below found the value of the goods to be one thousand six hundred and fifty dollars; that the sum of six hundred and fifty dollars, the amount received from the boarding-house, was liable for the husband’s debts; and gave judgment for the sum of one thousand dollars, and from this judgment the defendant appeals. It is contended, that inasmuch as this action does not concern the separate property of the wife, the husband should have been joined as plaintiff. This point is not well taken. The act of April, 1852, vests in the married woman, who avails herself of its provisions, the exclusive ownership and control of all the money and property invested in the trade, or business in which she is engaged, and as to such business, and the property invested, she is entirely independent of her husband. See McKune v. McGarvey, October Term, 1856. It is also contended that the act was designed to permit a married woman to invest only her separate property, in some business not unsuited to her sex. That it should not be so construed as to enable her to embark in business on capital furnished by her husband, or to pursue the same trade in which he was engaged; as such construction would afford to a debtor great facilities to defeat the claims of his creditors, by transferring his property, and avoiding the payment of his debts, while continuing business in the name of his wife. We do not think the Legislature intended to limit the provisions of the act to those women who were so fortunate as to be possessed of separate property; they designed to afford to every married woman an opportunity of providing against the improvidence or misfortunes of her husband, by engaging in any legitimate calling, by protecting her earnings against her husband and his creditors, and enabling her, by her own energy and industry, to support herself and children. So far from forbidding, the law, by the plainest implication, intends that the capital invested, to the extent of five thousand dollars, may be furnished by the husband. If the husband were at the time in embarrassed circumstances, such transfer would amount to a Maud upon his creditors, and therefore be void as to them, but would, we think, be good against all others. In this case, however, the question does not properly arise, as the money furnished by the. husband was deducted from the judgment of the Court below. [459] The act in question does not confine sole traders to any particular trade or occupation, nor does it prohibit the husband from being employed by, or acting for, his wife, in relation to her business. The fact that the trade or business was unsuited to her sex, or that the husband was employed in it, would be circumstances tending to establish fraud, but would not amount to conclusive evidence of its existence. These facts were before the Court below, and the question of fraud raised by the pleadings was decided in favor of the plaintiff. The business was certainly not unsuited to the sex or capacity of plaintiff; it was one of the few occupations offering a promise of remuneration, in which a woman "can with propriety engage, and though we may object to the employment of the husband by his wife, as tending to impair his dignity and authority, as the head of a family, it certainly is no reason for depriving the plaintiff of her rights under the law. The judgment of the Court below is affirmed, with costs.