Katherine O'Connell and Maria O'Connell, Plaintiffs, v. Ethelinda Morse Shera, Defendant

Katherine O’Connell and Maria O’Connell, Plaintiffs, v. Ethelinda Morse Shera, Defendant. Evidence — requiring the submission to the jury of the question whether a dressmaker’s bill was incurred on the credit of the wife or of her husband. In an action against a married, woman to recover a balance of a dressmaking bill, in which the question litigated is whether the services were performed and the materials were furnished upon the faith and credit of the defendant or upon the faith and credit of her husband, evidence given on behalf of the plaintiffs tending to show that the goods were furnished to the defendant at her request and at prices agreed upon; that the account kept by the plaintiffs was in the defendant’s name and that every item of the account was invariably charged to her; that each one of the bills had been sent to her and that she personally paid some money on account of the indebtedness and on one occasion wrote to the plaintiffs as follows: “I am sorry to have kept you w.aiting for the mpney I owe you, and I regret that I shall have to ask you to wait until the lOtli of December, when I shall surely pay you,” and on another occasion wrote to them stating that she was sorry not to he able to settle the entire bill, but would send some more money as soon as possible, and that the defendant never mentioned her husband in any of the transactions which the plaintiffs bad with her, is sufficient to require the case to be submitted to the jury, and renders it improper for the court to direct a verdict in favor of the defendant) Motion by the plaintiffs, Katherine O’Connell and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first ■ instancej upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. C. J. G. Hall, for the. plaintiffs. Walter I. McCoy, for the defendant. [MAJORITY — Patterson, J.:] Patterson, J.: This action was brought to recover a balance claimed to be due by the defendant to the plaintiffs for wearing apparel and materials furnished and work, labor and services done by the plaintiffs, who are dressmakers. The allegations of the complaint, are that at certain times. in the years 1899 and 1900 the plaintiffs, at the request of the defendant, sold and delivered to her wearing apparel and performed work, labor and services of the value of $5,531, for which she promised and agreed to pay. A credit of $825 is given on the account, and a balance of $4,706.13 is claimed. The defendant in her answer, after making certain denials, set up as a separate defense that at the times mentioned in the complaint she was a married woman, known to the plaintiffs to be such, and that the wearing apparel referred to in the complaint was sold and delivered, and the materials therein referred to were used and the work, labor and services therein referred to were performed solely upon the credit of the defendant’s husband, and not upon the credit of the defendant, and that the said wearing apparel, materials, etc., were necessaries. At the trial, after hearing the eviden.ee on both sides, the court directed a dismissal of the complaint, holding that there was no special contract in the case, and that there was not sufficient to charge the defendant with individual liability; and also that the husband was liable for the debt, and the defendant could not be made liable except by some act or word whereby she assumed liability. Exceptions were ordered to be heard in the first instance at the Appellate Division. The case should have been submitted to the jury. The question of fact to be determined was to whom credit was given, whether to the wife or to the husband. One of the plaintiffs testified that the articles were furnished to the defendant at her request and upon prices always agreed upon, that the account kept by the plaintiffs was with the defendant and in her name, and that every item in a long list of articles was invariably charged to her. Each one of the bills was sent to her and she personally paid some money on account of the indebtedness, and in October, 1899, wrote one of the plaintiffs as follows: “ I am sorry to have kept you waiting for the money 1 owe you, and I regret that I shall have to ask you to wait until the 10th of December, when I shall surely pay you.” In December, 1899, she, making payment on account, stated in a note to one of the plaintiffs that she was sorry not to be able to settle the entire bill, but would send some more money as soon as possible. She testified that in her dealings with the plaintiffs she stated that hen husband paid the bills, but that testimony was' flatly contradicted by the plaintiffs, who swore that the defendant never mentioned her husband in any of the transactions they had with her. As there-was a conflict of evidence as to whom the credit was given, the case-should have gone to the jury. There was enough on the part of the plaintiffs to establish a dealing between them and the defendant-based upon the credit of the defendant, While it is true that the presumption is that the husband is liable for necessaries furnished-'to a wife, yet the wife has complete right to contract for her personal liability even for necessaries. Since chapter 381 of the Laws; of 1884 was enacted all disabilities of a married woman to make valid contracts are removed, and she may now make contracts and bind herself in the same way as a femme sole.' Where such a contract is made she is no longer to be considered as acting as the agent, of her husband. The defendant here was competent to contract-The plaintiffs show that credit was primarily given to her, and there is evidence that she recognized that the contract was with her, for she paid personally on account of the indebtedness, and wrote a letter, to the plaintiffs acknowledging that she owed the bill. ■It being for the jury to determine to whom the credit was given, the exceptions must be sustained and a new trial ordered', with costs ■to plaintiffs to abide the event. Ingraham, Hatch and Laughlin, JJ., concurred. Exceptions sustained, new trial ordered, costs'.to plaintiffs to abide event.