Gordon v. Dix

Colt, J. It is unnecessary to decide whether, under the pleadings, in order to defeat this action, the defendant can avail herself of the fact that she was a married woman at the time of the [306] alleged contract. It is true, the defence was not set up in hei answer; but the question was not raised at the trial, and the plaintiffs seem to have assumed, without objection, the burden of showing those facts which, under the recent statutes, give her a special, limited power to make contracts in her own name and on her own account. Gen. Sts. c. 108, §§ 3, 5. Tracy v. Keith, 11 Allen, 214. Granger v. Ilsley, 2 Gray, 521. The court erred in ruling, as matter of law, that the action could not be maintained upon the evidence submitted. It was held in Stewart v. Jenkins, 6 Allen, 300, that a contract by which a married woman acquired separate property was a contract, in reference to her separate property within the statutes; and in Spaulding v. Day, 10 Allen, 96, that a note given by her for wood sold to her on her own credit was binding, although there was no evidence in either case that she carried on business on her own account. In Labaree v. Colby, 99 Mass. 559, evidence that at the time of buying articles of apparel for her own wear she told the seller to charge them to her, and promised to pay for them out of her separate estate, was held sufficient to sustain an action against her personally. These cases are decisive. There was evidence here, which should, at least, have been submitted to the jury, showing that the defendant bought the articles on her own credit, and that they became her separate property, and were so treated in the appropriate use afterwards made of them by her sole direction. The fact that she owned separate real and personal property, and transacted business and made contracts in relation to the same, is also to be considered together with her declarations, in reaching the intention of the parties in this transaction. Exceptions sustained.