Troy Fertilizer Co. v. Zachry , 114 Ala. 177 ( 1896 )

HEAD, J. —

The substance of plaintiff’s position is that Mrs. Stephenson, a married woman, carried on a mercantile business by her husband, J. T. Stephenson, as her agent, who, in the conduct of the business, purchased plaintiff’s goods and executed the note sued on, signing it “J. T. Stephenson, agent;” and that by reason of thus holding out her husband as her agent, and inducing the public to deal with him, as such, in the belief that he was duly authorized to bind her, under which conditions plaintiff dealt with him, she is estopped to deny his authority, and cannot plead her coverture when sued upon contracts so made by him. In other words, that a married woman may make binding contracts by orally appointing an agent to make them generally, and having him to make them in her behalf. The position is, manifestly, in direct contravention of the statute. It would seem needless to repeat what we have frequently said, that, under the statute, a married woman cannot bind herself by a contract to pay money unless she makes it in writing, with the written assent of the husband, except that with the consent of the husband, given and recorded in a prescribed manner, she may contract in the pursuit of a lawful trade or business. In this case, there was no written obligation on the part of the wife, nor written assent of the husband; nor was there the assent of the husband recorded as required to enable her to carry on business. All persons must take notice of the legal disabilities of married women, and deal with her at the peril of ascertaining that the legal conditions exist which relieve her of them.

The replication to the pleas to which the trial court sustained a demurrer was bad, and the demurrer properly sustained.

The special replication, on which issue was joined, was not sustained, and the court properly gave the general charge for the defendant.

The record of the chancery decree, purporting to remove the marital disabilities of Mrs. Stephenson, does not affirmatively show the jurisdictional facts, that she was possessed of a separate estate, that her petition was in writing, nor the consent of the husband in writing, or proof by deposition as in chancery cases. The decree, therefore, on its face, unaided by any further record, is of no validity.

Affirmed.