Fiske v. McIntosh

Gray, J. It is well settled by the adjudged cases that under the Gen. Sts. c. 108, § 3, a married woman may acquire separate property, real or personal, by contract, and may be sued for a breach of such contract. Stewart v. Jenkins, 6 Allen, 300. Estabrook v. Earle, 97 Mass. 302. Labaree v. Colby, 99 Mass. 559. The defendant therefore had power to make a contract in her own name, and binding upon her, for the hiring of real estate. The plaintiff at the trial introduced evidence that the defendant told the plaintiff how much she was earning, and personally made the bargain with the plaintiff for the occupation of the premises at a stated rent, which was afterwards paid to the plaintiff upon receipts made to the defendant in her own name; that the plaintiff knew that the defendant was a married woman, but that her husband had been absent from the Commonwealth for two years before the letting. This evidence was sufficient to sustain an action against her, if the plaintiff made the contract with her and upon her own credit, although her husband 68 occasionally visited her and contributed to her support and that of the family. Spaulding v. Day, 10 Allen, 96. Labaree v. Colby, above cited. Westgate v. Munroe, 100 Mass. 227. The only rulings requested by the defendant were, that if there was any tenancy, it was in law the tenancy of her husband, that it was not competent for her to make such a contract, that she was not in law the tenant of the plaintiff, and that this action could not be maintained. The presiding judge declined so to rule ; and instructed the jury that if the defendant hired the house for her use, without using the name of her husband, as testified by the plaintiff, the action could be maintained against her. The defendant thereupon, without having (so far as appears by the bill of exceptions) asked to argue any question of fact to the jury, submitted to a verdict for the plaintiff. As the rulings which she requested were erroneous, and the instructions which were given were correct, as matter of law, her exceptions cannot be sustained. Exceptions overruled.