Dingens v. Clancey

By the Court, E. Darwin Smith, J.

The referee finds, as matter of fact, that the plaintiff sold and delivered the goods, for which this action was brought, to the defendant on the 29 th of May, 1874, at the price and value of $141.50. That the defendant was then a married woman, the wife of "John Clancey of Hornellsville, N. Y., and she, at the time, was possessed of a separate estate in her own right; and that the said goods were sold and delivered by the plaintiffs to the defendant on the faith and credit of her separate estate. He finds, also, that no intention to charge her separate estate was expressed in the contract of sale, and that the contract did not relate to her separate estate, and was not made for the benefit of her separate estate; and also that said liability and contract was not in or about the carrying on of a trade or business of said defendant; and he gave judgment for the defendant.

If, as the finding states, these goods were sold and delivered to the defendant on the faith and credit of her separate estate, the title to them passed to her, and they became part and parcel of her separate estate. (Williamson v. Dodge, 5 Hun, 498. Kelly v. Long, 4 Thomp. & C., 164. Knapp v. Smith, 27 N. Y., 277. Abbey v. Deyo, 44 Barb., 374.) The goods solds however, were for use in a hotel owned by the defendant, and so far did relate to her separate estate.

But I think the referee erred in his finding upon the facts that the liabilities and the contract, which was for liquors sold, were not in and about the carrying on of a trade or business of the defendant. These liquors, so purchased by her, were purchased for the purpose of carrying on the business of keeping a hotel owned by the defendant at Hornellsville, at the time in the actual possession of the- defendant, and which she was in fact ostensibly carrying on with the aid of her husband. And I think the referee should so have found, upon the evidence. The hotel property was hers"; the furniture therein was all hers; she superintended the household work. She testified as follows: “I was most always there; all of the last year I had three servants in the hotel; I gave directions to the servants what to do about the kitchen and dining rooms, and upstairs work, and such parts as I took charge of.” The guests of said hotel occupied her rooms, slept in her beds, dined at her table, and paid for the services and attendance of herself and her servants. Her husband tended the bar, and took charge, outwardly, of her affairs. He was in fact simply her agent. He had no interest in the rents, use and profits of the hotel or its business. These belonged to her, prima facie, by right of her ownership of all the property. He was, doubtless, as she testified, trusted to do her business and receive her rents and moneys, and pay bills. All the receipts of the hotel were used to pay the expenses of the business, and in tlíe support of themselves and their family.

I think the business of keeping said hotel was, in fact and in law, the business of the defendant, within the intent and meaning of the statute relating to the business carried on by a married woman — as much so as the business of carrying on a farm was the business of the wife, and not of the husband, in Gage v. Dauchy, (34 N. Y, 297;) Knapp v. Smith, (27 id., 277;) or Buckley v. Wells, (33 id., 518.)

But if this were not so generally, I think the defendant is estopped in this case from setting up or denying, as against the plaintiff in this action, that she was actually carrying on the business of hotel keeping in her said hotel.

There was no sign up indicating that her husband kept such hotel.' Before the plaintiffs sold the bill of liquors, their agent testified that he called at the Tremont House — the name of said hotel, and the only sign affixed to it—for the purpose of selling a bill, and saw Mrs. Clancey, and had conversation with her on the subject, and she then referred him to her husband; that her husband, on the same day, made out the order for the bill, in her name, and directed them to be sent to the defendant’s address, and they were so sent, billed and shipped in her name, and were duly received from the carrier at said hotel; that a few weeks afterwards the same agent saw her again, at said hotel, and she recognized him, saying, “You are the gentleman from Buffalo we bought some liquors of, are you ?” She then said the liquors were first rate, except the brandy was a little too dark.

Upon these facts and other evidence in the case, I think the defendant should be held estopped from saying that she was not carrying on the business of said hotel, as against these plaintiffs. Married women who own property and control and manage it, and carry on business thereon and therewith, in the same manner as if they were unmarried, or men, should be held to all the legal responsibilities growing out of the exercise of such rights, precisely as though they were in fact men.

They cannot be allowed to hold out false appearances in such business or matters, more than men ; nor allowed to use their irresponsible husbands as a cover, or as agents or instruments of dishonesty and fraud.

A married woman must be bound, as Judge Allen states the rule in Bodine v. Killeen, (53 N. Y., 93,) “by the appearance which she has given to transactions; and upon the faith of which others have acted, up to the limits of her legal capacity to act.”

[Fourth Department, General Term at Rochester, October, 1876.

The plaintiffs had the right to suppose, and act upon the assumption, that she was the actual principal in carrying on the business at said hotel, and she cannot be allowed to disavow her responsibility for the goods purchased of them and used in the business of such hotel for her benefit, and cast off the responsibility for the payment upon her irresponsible husband. The judgment should be reversed.

.Judgment reversed, and new trial granted, with costs to abide the event. The trial to be had before a new referee.

Mullin, E. Darwin Smith and Talcott, Justices.]