Feran v. Rudolphsen

Ames, J. The instructions requested by the defendant we?-* not appropriate to the present state of the law of this Commonwealth in relation to the rights and liabilities of husband and wife, and were therefore properly refused. Under the Gen. Sts. e. 108, §§ 3,5, a married woman might carry on any trade or business in the same manner as if she were sole ; and her contracts in such business were made binding upon herself and her separate property, and not binding upon her husband and his property. The question of fact, whether the contract and the business should be held to be his or hers, might be, and often was, embarrassing and complicated; and the legislature found it advisable to simplify the matter, in the mode pointed out by the St. of 1862, e. 198. According to that statute, the right of any married woman to do business on her own separate account remains unimpaired; but in order to secure the property employed in such business against the risk of being attached by creditors of her husband, she is required to file a certificate with the town or city clerk, giving the particulars required by the statute. On filing such a certificate, she protects her stock in trade from that [474] risk, and relieves her husband from all liability on her contracts. On his part, he is bound, if she should neglect that precaution, to file such a certificate himself; and if no such certificate be filed, “the husband shall be liable upon all contracts lawfully made in the prosecution of such business,” that is, the wife’s separate business, “ in the same manner and to the same extent as if the same had been made by himself.” The only interpretation which can be given to this statute is, that the contracts of the wife in relation to her own separate business are to be considered as binding upon the husband, unless either she or he shall have fulfilled a prescribed and not very onerous condition. It will be of no avail to prove that she was not acting as his agent, or with his consent, but that the contract was her own, in relation to her separate business and upon her exclusive credit. The defendant’s responsibility became fixed, in this case, by the failure to file the certificate. He has failed to fulfil the condition without which it was impossible for him to make any effectual disclaimer of the statutory liability. The law has established a rule on this subject, to which he has not conformed. The case presents no evidence of an express waiver, by the plaintiff, of her right to look to the husband for the debt ; and none can be implied from the evidence reported, without entire disregard of the statute. The instructions to the jury having been quite as favorable to the defendant as he could properly ask, his Exceptions are overruled. N. O. Berry, for the appellee. L.M. Child, for the appellant.