Opinion
June Term, 1867
D. McMahon, for the appellant.
Thomas G. Shearman, for the respondent.
The principal question in this case arises under the statutes of 1848, and 1849, in relation to the property of married women. The primary purpose of these acts was to enable every feme-covert to hold property in her own right, without the intervention of trusts or marriage settlements. It was neither their design nor effect, to place such property beyond the reach of all remedial process, nor to secure to the wife a mere dormant and barren title, with none of the usual incidents of the jus disponendi. Under their operation, she succeeded to the right which a trustee could have exercised under the old law, to protect the interests thus vested by all the usual agencies, and to enforce and defend her claims in the tribunals of law and equity. While her antecedent disabilities arising from the conjugal relation were not wholly removed, they were necessarily so far modified as to secure her in the beneficial enjoyment of the new interests she was permitted by law to acquire. ( Yale v. Dederer, 18 N.Y., 272, 278; 22 id., 451; Buckley v. Wells, 33 id., 522.) She was still left without capacity to bind herself personally by a naked promise, note or bond; but she could exercise the right of an owner by subjecting her separate estate to charges in equity, for services rendered at her request for the benefit of such estate; or she could dedicate it to other purposes if she chose to evince her intention by a formal and deliberate pledge. The mere fact, however, that she was the owner of a separate estate, did not affix to it, under these acts, a liability in equity in respect to her engagements at large. Such a lien could only be deduced from an express or implied agreement to that effect on her part, or from some equivalent obligation resulting from her acts by operation of law. Where services are rendered for a married woman by her procurement, on the credit and for the benefit of her separate estate, there is an implied agreement and obligation springing from the nature of the consideration, which the courts will enforce by charging the amount on her property as an equitable lien. ( 18 N.Y., 276, 282, 284; 22 id., 460.) Where a charge is created by her own express agreement, for a good consideration, though for a purpose not beneficial to her separate estate, or even for the sole benefit of her husband, she is bound in equity by the obligation which she thus deliberately chooses to assume. ( 18 N.Y., 276, 283; 22 id., 451.)
It was at one time a mooted question in the courts, whether, under the statutes above referred to, and prior to the act of 1860, the common law disabilities of the wife were so far modified, as to permit her to manage her estate through the intervention of agents and employees; but it is now entirely settled that she acquired, in this respect, the usual rights incident to absolute ownership, and that she could avail herself of any agency, even that of her husband, with the same effect as if they were not united in marriage. ( Knapp v. Smith, 27 N Y, 277, 280; Buckley v. Wells, 33 id., 518, 522; Smith v. Sweeney, 35 id., 294, 295; Draper v. Stouvenal, 35 id., 513; Abbey v. Deyoe, 44 Barb., 382.)
In this case the referee finds, as matter of fact, that the plaintiffs were employed by the appellant through her authorized agent, to whom she had intrusted the entire management of her business and estate. She was as effectually bound by the act done in her name, as if she had personally engaged the professional services of the respondents. She accredited her husband to the public, as her general agent in all that pertained to her business; and as the plaintiffs had no notice of any private restrictions upon his authority, the fact that any such were given would have been unavailing, even if she had succeeded in proving it. ( Wademan's Bank, 11 Wend., 87; Johnson v. Jones, 4 Barb., 369, 373.)
It is also found, as matter of fact, that all the services in question were rendered for Mrs. Cawley, and for the benefit of her separate estate. Her counsel insists that such of them as appertained to suits in which there was a failure to collect the amount of the claims, should not be deemed beneficial in their character. No such distinction can be maintained. The rule of equity under which the estate of a married woman is subject to a charge in respect to services rendered for its benefit, has reference to the subject-matter and nature of such services, and not to the contingent and ultimate gain or loss of the parties procuring them. A builder who, at the request of a feme-covert, erects a dwelling on her land, performs a service for the benefit of her estate within the meaning of the rule; and its nature would not be changed though the edifice should afterward be destroyed by fire. An employee who tills her land for hire, has an equitable claim to compensation; and, if he discharges his duty faithfully, he has a remedy for his wages, though her fields should prove unproductive. In this case the claims in question formed a part of the separate estate, and the services were for its direct and immediate benefit. ( Dillaye v. Parks, 31 Barb., 132.) The appellant preferred not to prosecute the suits in person; and the attorneys who conducted them in her behalf, having served her with suitable skill and fidelity, are not responsible for any defects in her proof, or for the inability of her debtors to respond to their obligations. It follows from these views that, on the principal questions involved in the case, the referee was right in his conclusions.
The plaintiffs were properly allowed to prove the admissions of the appellant on the previous hearing. They constituted a portion of the evidence, which, under the order entered at the General Term, either party was entitled to read, and this right was exercised on the second trial by both. Where an absolute and unqualified admission is made in a pending cause, whether by written stipulation of the attorney, or as matter of proof on the hearing, it cannot be retracted on a subsequent trial, unless by leave of the court. No cause for granting such leave was shown, and there was no allegation of mistake, imposition or surprise. ( People v. Rathbun, 21 Wend., 543, 544; Elton v. Larkins, 24 Eng. Com. Law., 372; Doe v. Bird, 32 id., 416; Langley v. Earl of Oxford, 1 Mees. Wels., 508.)
It is claimed in behalf of the appellant that the referee should not have permitted the reading, on the new trial, of the evidence on the former hearing, as provided in the order of reversal. We see no reason why the parties are not concluded by that order, in which both of them seem to have acquiesced. No appeal from it has ever been taken; no motion was made to modify it, and both parties have acted under it. ( Vail v. Remsen, 7 Paige, 207.) It was read in evidence without objection, and no question in regard to it was raised before the referee. Portions of the proof, introduced under it, were objected to, on other and specific grounds; but the position now taken, that the whole was inadmissible, was not even suggested on the trial. Upon the facts disclosed by the case, we do not think the objection tenable; but if it had been well founded, it would be too late to raise it on appeal. ( Newton v. Harris, 2 Seld., 345; Judd v. O'Brien, 21 N.Y., 190.)
In the course of the trial, objections were taken to proof of the acts and declarations of the defendant's agent, in relation to the legal proceedings conducted by the plaintiffs. They constituted a part of the res gestæ, and as his agency was conceded, they were admissible as acts and declarations of his principal. ( McCotter v. Hooker, 4 Seld., 503; Fleming v. Smith, 44 Barb., 554.) Other grounds of error are alleged, but they seem to us plainly untenable.
The judgment should be affirmed, with costs.
PARKER, J., also read an opinion for affirmance.
All the judges concurring,
Judgment accordingly.