Winkler v. Schlager

Hardin, P. J. Defendant’s first letter to the plaintiff was dated March 13, 1889, and her second letter addressed to the plaintiff was dated April 30th. The letters stated somewhat minutely the needs and wants of the defendant in respect to a servant girl, and the duties that would be.imposed upon the plain [113] tiff if she entered into the service proposed. It appears in the testimony of the plaintiff as a witness that the husband of the defendant, having been made aware of the negotiations had by his wife with the plaintiff, communicated with the plaintiff. Plaintiff testifies, viz.: “He, Mr. Schlager, sent me his mileage book in May, about the 7th, a few days before I started. He sent it with a letter. I have not the letter. Last saw the letter in May, 1889, at Catskill. Have not seen it since. Do not know where it is. * "* * He said I shouldn’t be in a hurry about coming; that they wa’n’t quite settled yet. He said book was inclosed for my fare from Albany to Binghamton, which I could use. I think of nothing else. I did use it from Albany to Binghamton. That was the first said about fare by either party. I used it and came on May 9th. At that time Mr. Schlager was living at Ho. 87 Cheaango street, with the defendant, his wife. * * * I understood he had occupied the premises for some months before I came. He said in the letter they were cleaning house. He did not say when they would be ready for me, or when they would be through cleaning house. Mr. Schlager had one child, two years old. A portion of my duties was to take care of that child, and the other duties were in his family, about the house.” We think it was incumbent upon the plaintiff to show that her employment was by thedefendant, and not by the husband. We think the evidence indicates that the defendant was acting as the agent of her husband in writing the letters to the plaintiff, and her services were engaged for and in behalf of the husband. From the testimony of the plaintiff in respect to the letter received from the husband, together with the other facts and circumstances disclosed in the evidence, it is quite apparent that the plaintiff understood that her services were requested in the household of the husband, and for his benefit. The services to be rendered were for the benefit of the husband, therefore. In Smith v. Allen, 1 Lans. 105, Johnson, J., says: “Goods purchased by the wife upon credit for family use are the goods of the husband, and the husband, and not the wife, is liable to pay for them, unless there is some special agreement between the parties, by which they are sold to the wife for her exclusive use, and upon the credit of her separate property, and not upon the credit of the husband.” In Kegney v. Ovens, (Sup.) 2 N. Y. Supp. 319, it was held, viz.: “If the party dealing with the wife knows she is a married woman living with her husband, and the order is of a character to indicate that it is for the benefit of her husband’s family, he is bound to presume that she is acting for her husband, and cannot hold her personally liable unless she expressly agrees to become so.” In Dickinson v. Ensign, (N. Y. App.) 25 N. E. Rep. 5, it appeared that the articles were charged to the defendant on the plaintiff’s books, and that the plaintiff from time to time rendered statements of the account to the defend- . ant, who examined, corrected them, and made payments' thereon; and “the referee found that defendant directed that the articles should be charged to her.” The case differs essentially from the one before us, and does not aid the contention of the plaintiff. In Cutter v. Morris, 116 N. Y. 310, 22 N. E. Rep. 451, it appeared the services were rendered by an architect for the benefit of the separate estate of a married woman, and she knew at the time and was consulted at length about them; and upon a review of all the evidence given in the case the court of appeals (second division) reached the conclusion that upon the whole evidence, “as the services in question were rendered for the benefit of the separate estate of the defendant, and she knew at the time,” a question of fact was presented which “should have been submitted to the jury.” We see nothing in that case which aids the plaintiff. In Van Mallen v. Fuhrman, (Sup.) 9 N. Y. Supp. 878, the referee found that the groceries “were sold by the plaintiff, and delivered to the said testatrix, at her request, and for her benefit, and on her sole responsibility, and that during such time she was the owner of real property in her own right.” The evidence before us in this case would not support a similar finding of fact, and the findings [114] made by the referee do not come up to the finding in the ease from which the quotation is made. Although the enabling act of 1884 (chapter 381, Laws 1884) authorizes a married woman to enter into a contract, as explained in Dickerson v. Rogers, 114 N. Y. 408, 21 N. E. Rep. 992, and although since the passage of that act she is bound by her contracts, we think the act does not give the plaintiff the right of recovery.in this case. The important and pivotal question is whether the employment was the employment of the husband or of this defendant. Tiemeyer v. Turnquist, 85 N. Y. 516. Upon the whole evidence we think the contract of employment claimed in the case was with the husband, and that the evidence fails to disclose an intention on the part of the defendant, the wife, to become personally liable upon the contract for the servant’s services to be performed in the family of the husband. Whitford v. Laidler, 94 N. Y. 145; Strong v. Moul, (Sup.) 4 N. Y. Supp. 299. We are of the opinion that the referee fell into an error in holding that the wife, and not the husband, was liable upon the alleged contract made for the services of the plaintiff. We are therefore of the opinion that the judgment should be reversed upon the law and facts. Judgment reversed on the law and facts, and a new trial ordered,1 with costs to abide the event. All concur.