Hickey v. Thompson

• Decision Date: 09 November 1889
• Parties: HICKEY v. THOMPSON
• Court: Arkansas Supreme Court

12 S.W. 475

52 Ark. 234

HICKEY v. THOMPSON

Supreme Court of Arkansas

November 9, 1889

APPEAL from St. Francis Circuit Court, M. T. SANDERS, Judge.

Judgment affirmed.

W. G Weatherford, for appellant.

The note of a married woman, who joins with her husband, is void. 14 Ark. 270; 16 id., 196; 39 id., 242; 27 id., 351 When enforced in equity, it must be in rem. against her property and not against her. Ib., supra. Even then it must appear that she entered into the engagement which created the original indebtednesss with the intent to bind her separate property, and so understood at the time by the person with whom she contracted. Schouler Dom. Rel., 226. In this State it must appear that the contract was made with reference to her separate estate. 29 Ark. 350-447; 30 id., 392, 773; 32 id., 451.

The common law disabilities remain since the Constitution of 1874, unless removed by statute. 39 Ark. 361.

The act of April 28, 1873 (Digest, chapter 104), was for her protection; converted her property into separate estate exonerated it from liability for, or control by, her husband; empowered her to trade or carry on business, sue and be sued, etc. The power to devise, bequeath and convey as a femme sole was conferred subsequently by the Constitution of 1874. She always had power to take hold, manage or charge her separate real estate, but she was empowered to enter the field of trade and business, and made liable for what she did. 30 Ark. 728. She is not liable for her husband's debts, nor any other, except those contracted with reference to her separate estate, or as a sole trader. 48 Ark. 223; 33 id., 265; 43 id., 163. The Constitution and the act of 1873 do not enlarge the wife's capacity to contract, but to secure to her property which would pass to her husband. So the provision empowering her to carry on trade may imply the power to contract in relation to the business. But the purchase and sale of real estate is not a separate business, within the meaning of the statute, which relates to mechanical, manufacturing or commercial pursuits. 71 N.Y. 199.

Sanders & Watkins, for appellee.

Carrying on and engaging in a general planting and farming business is a separate trade, business or vocation, under the act of 1873, as much so as the sale of goods, manufacture of wares, or engaging in mechanical pursuits, and 71 N.Y. 200, and 43 Ark. 167., is not opposed to this construction. See Schouler on H. and W., sec. 309; 126 Mass. 332; 51 Wisc., 204.

It is true the credit was given her husband, but when it was ascertained he was only her agent, they at once sought the principal and took her note, and she was bound. Thompson v. Davenport, decided in 1829.

She was a sole trader, and as such liable on her contracts in the course of trade.

OPINION

BATTLE, J.

Appellees sued appellant, Jennie C. Hickey, on three several promissory notes executed by her on the 14th of February, 1881, each for the sum of $ 266.41, aggregating $ 799.23, and bearing interest from the date of their execution. They allege that she was a married woman at the time when the debt evidenced by the notes was contracted, but that she had a separate estate, and was carrying on a trade and business on her sole and separate account, and that the debt sued for was for moneys, goods and supplies advanced and sold to her for the maintaining and carrying on her separate business of farming and planting, and were used by her in that way. She denied contracting the debt; pleaded that she was a married woman when it was contracted and the notes were executed; and denied that she was carrying on a trade and business on her sole and separate account. The issues were tried by a jury, and a verdict was returned in favor of appellees, and her motion for a new trial having been overruled, she appealed.

There was evidence adduced in the trial tending to prove that appellees sold and advanced moneys, goods and supplies, to be used and consumed in improving and cultivating a certain farm, and raising crops thereon; that believing that the husband of the appellant was the owner of the farm, and cultivated the same on his own account, they charged the moneys, goods and supplies to him; that afterwards they discovered that the farm was owned, claimed and cultivated by appellant; that she was engaged in the cultivation and raising crops thereon on her sole and separate account; that in the borrowing of the money and the purchasing the goods and supplies he was acting as her agent; and that when they discovered that fact they requested her to settle the account as her own indebtedness, and she did so by executing the notes sued on. If this evidence be true, were appellees entitled to recover judgment against her on the notes?

1. Married Women:

May engage in farming: Liability etc.

The validity of the notes depends upon her right to engage in farming. Did she have such right? The statute expressly empowers a married woman to "carry on any trade or business," on her sole and separate account. It authorizes her to become something more than a trader in the commercial sense. It says she may carry on any "business." The primary signification of the word "business" is employment--"that which employs time, attention and labor." It is clear it was used in that sense in the statute; for it expressly provides, that she may carry on any trade or business, "and perform any labor or services on her sole and separate account," and that her earnings "from her trade, business, labor or services, shall be her sole and separate property, and may be used or invested by her in her own name." It does not limit her right to engage in trade or business, but says she may carry on any trade or business. It follows then she may engage in farming. Mansf. Digest, secs. 4624, 4625, 4626; Netterville v. Barber, 52 Miss. 168; Snow v. Sheldon, 126 Mass. 332; Krouskop v. Shontz, 51 Wis. 204, 8 N.W. 241; Schouler on Husband and Wife, sec 309.

Walker v. Jessup, 43 Ark. 163, cited, by appellant in her brief has no application to this case. In that case, the defendant, who was a married woman, purchased lands at an administrator's sale upon a credit, and executed her bond for the purchase money. The object of the suit was to recover a personal judgment against her on the bond, and a decree of foreclosure and sale. This court held that the plaintiff was not entitled to a personal judgment against her. The question involved in this case was not considered or discussed in that case.

The effect of the statute authorizing a married woman to "carry on any trade or business" on her sole or separate account, is to invest her with all the rights, powers and privileges of a femme sole in respect to her separate business and the property invested therein, and subject her to the...