Owen v. Cawley

By the Court, Sutherland, J. I think it very clear that the defendant, Samuel B. Cawley, could act as agent for his wife. The referee, in substance and effect, found that Jane F. Cawley authorized her husband to employ the plaintiffs. There was certainly evidence tending to show that she did; and I do not see upon what principle the judgment can be reversed on the ground that this finding of fact was erroneous. The Harlem lots and rail road bonds with which Bunyon’s stock in trade was bought for Slaight were Mrs. Cawley’s separate property and estate. To secure her, Slaight executed a mortgage to her on the stock in trade. She subsequently received the stock in trade, notes, accounts &c. of Slaight & Co., in satisfaction of her mortgage, and carried on the business in her own name. The plaintiffs, as attorneys, were employed by her husband to collect some of the accounts of Slaight & Co., assigned to her, and also some debts or claims arising out of the business after she carried [118] it on. In some, if not all of the suits brought by the plaintiffs, they were unsuccessful; that is, they did not succeed in collecting the claims. This action was brought to recover for services rendered by the plaintiffs, as attorneys and counsellors, under such circumstances; and the question is whether the separate estate of the defendant, Jane F. Cawley, is liable for the sum found by the referee due to the plaintiffs. The referee having found, as matter of fact, that Samuel B. Cawley, in employing the plaintiffs, acted as the authorized agent of his wife, I think her separate estate is liable. The referee finds that the services rendered by the plaintiffs were rendered for the benefit of Jane F. Cawley, and of her separate estate. I think this finding right, and authorized, if the finding of the referee, upon the question of the employment of the plaintiffs by Mrs. Cawley, through her husband, was right, and I have said I do not see how we can disturb the finding of the referee on that point. The suits and proceedings instituted by the plaintiffs were instituted for the purpose of collecting demands belonging to Mrs. Cawley, and thus increasing or adding money to her separate estate, and so benefiting her separate estate. It seems to me that the fact that the suits and proceedings, or some of them, were unsuccessful, is not of controlling importance on the question of the liability of her separate estate. The suits and proceedings were instituted for the purpose of benefiting her separate estate. Moreover I am not willing to concede that the liability of the separate estate of a married woman for debts .contracted by her is limited to cases where she has by contract expressly declared her intention to charge it, or where the consideration of the indebtedness was obtained for the direct benefit of the estate itself. In Yale v. Dederer, (18 N. Y. Rep. 275, 276,) Judge Comstock says: “The principle, in short, which now governs in cases of this kind isj that a wife’s separate estate is liable to pay her debts during coverture, in whatever form they are [119] incurred, not because her contracts have any validity at law, nor by way of appointment, or charge, but because equity decrees it to be just that they should be paid out of her estate.” [New Yoke General Teem, May 2, 1864. If a married woman, with a separate estate producing an ' annual income of $20,000 or $30,000, should buy on credit diamonds or laces to the amount of $5,000, it would be difficult to say that the diamotids or laces were bought or obtained for the benefit of her separate estate, whether real or personal, or both; but 1 think equity would decree it to be just that the debt should be paid out of such separate estate, even in the absence of anything to show her intention to charge her separate .estate with the payment of it, except the mere fact of purchasing the diamonds or laces on credit. On the main question, therefore, in the principal case, I think the referee came to the right conclusion. I have examined the numerous technical exceptions taken on the part of the defendants in every stage of the trial, and do not find any which require a particular notice, or which in my opinion should reverse the judgment. The judgment should be affirmed with costs. Leonard, Gierke and Sutherland, Justices.]