Crane v. Kelley ( 1863 )

Merrick, J.

When the lumber was delivered, the defendant had no legal capacity to make the contract declared on. She was then a married woman, and St. 1857, c. 249, had not taken effect. By St. 1855, c. 304, § 7, any married woman was empowered to carry on any trade or business, to perform any labor and service, and to use and invest her earnings on her own sole and separate account j and she was entitled to sue and liable to be sued in regard to her contracts and engagements made in the course of such pursuits. But the appropriation by the defendant of the lumber which was delivered on the premises in the alteration and repair of the buildings on her land was not an act done in the conduct of her trade and business, or in the use and investment of her earnings, within the meaning of those provisions of the statute. She was not competent, therefore, to bind herself by an express promise to pay for its value, nor could a valid promise be deduced from its use. The present case is not in substance distinguishable from that of Smith v. Bird, 3 Allen,

Exceptions sustained.