John Owen and George F. Bellows, Respondents, v. Jane F. Cawley, impleaded, etc., Appellant

36 N. Y. 600-Appboved, 33 Superior *99. John Owen and George F. Bellows, Respondents, v. Jane F. Cawley, impleaded, etc., Appellant. It Was neither the purpose nor the effect of the acts of 1848 and 1849, to put the property of married women beyond the reach of remedial process, or to secure to the/erne-cowerí a mere barren and dormant title. By the operation of these acts, the antecedent disabilities incident to the conjugal relation were so far modified, as to secure the wife in the bene- • ficial enjoyment of the new interests she was permitted by law to acquire. . ... 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 estate to equitable charges for her own benefit. When services are rendered fór 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. Where a charge is created by her own express agreement, for a good consideration, though for a purpose not beneficial to her estate, or even for the sole benefit of her husband, she is bound in equity by the obligation she thus deliberately chooses to assume. A married woman is at liberty to avail herself of the agency of her husband, as if they had not been united in marriage. When 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. Appeal from the Supreme Court. The action was for professional services rendered to a married woman for the benefit of her separate estate, and the relief sought was that the same be declared an equitable lien on such separate estate, and that so much thereof as might be necessary be appropriated to the satisfaction of the claim. On the first hearing, before Judge Mitohell, the referee, judgment was rendered for the plaintiffs for a greater amount than on the last trial. That judgment.was reversed at the General Term, for the reasons appearing in the report of the case. (36 Barb., 52.) The order of reversal procured on that occasion, provided that the evidence taken on the first trial should stand as evidence on the new trial, and that either party should be at liberty to add such further evidence as they might be advised. Neither party appealed from this order, and, so far as appears, it was mutually acquiesced in and acted upon by both. On the last hearing, before the same referee, judgment was recovered by the plaintiffs, pursuant to the prayer of the complaint ; the amount of the lien, charged on the defendant’s estate, being adjudged to be $61.25, with interest from the 30th of May, 1859, and costs. The defendant appealed to the General Term of the Supreme Court in the first district, and the judgment was unanimously affirmed, the opinion of the court being delivered by Mr. Justice Sutherland. The following facts were admitted in the verified pleadings, as amended: 1. That the plaintiffs were attorneys and counselors, in partnership, in the city of New York. 2. That the appellant, Jane F. Cawley, was the wife of the defendant, Samuel B. Cawley. 3. That she was possessed, in her own right, separate from her husband, of a large amount of real and personal property in this State, including a house and lot in Queens county, and a store of goods in New York, in which she had conducted the ship chandlery business from a period before the 1st of January, 1858, down to the commencement of the suit ; and that, in the course thereof, in the years 1858 and 1859, and prior to the commencement of this action, she had various sums due and owing to her by various individuals, ships and vessels. 4. That during these periods, and previous thereto, her husband carried on the business, as her agent, and, as such, managed and conducted the same in all its details. The complaint also alleged the professional services and disbursements of the plaintiffs, at her request and that of her agent; the amount due therefor, and the fact that such services were rendered and such disbursements made, on the credit and for the benefit of her separate estate. These allegations were put in issue by the answer. The referee found, among other things, as matter of fact, that all the services alleged were rendered, and that all the facts stated in the complaint were true,, with certain exceptions as to amounts, etc., not material to be stated. He found, as matter of fact, that all the services embraced in the amount he allowed, were rendered for the benefit of Mrs. Cawley and of her separate estate; that she employed the plaintiffs to render them, through the agency of her husband, to whom she had intrusted the whole management of the business of her separate estate — having full confidence in his ability to act for her, and not restricting his authority in any way, but revesting him “ to let law alone, if possible, and to do a cash business.” This request was not made known to the plaintiffs. The prosecution of each of the actions and proceedings was expedient, and there was no prospect that the demands would be collected without suit. The defendant attempted to establish a special agreement that no compensation should be made for services which did ■not result in collecting the money; but the referee found, as matter of fact, that no such agreement was made. A question was raised, whether some of the proceedings, which were taken in the names of nominal assignees of the appellant, for particular reasons disclosed by the evidence, were not really for the benefit of such assignees; but the referee found, as matter of fact, that they were so taken for the benefit of Mrs. Cawley, and of her separate estate, and by the direction of the husband as her agent. He also found, that each of the claims presented by the plaintiff, arose out of sales by her husband as her agent, of goods belonging to her separate estate, except in a single instance. In that case the claim was for goods sold by J. C. Sleight & Co., the previous proprietors of the store, and which, with other goods and demands, had been absolutely assigned to her, in payment of a debt for advances from her separate estate. The defendant attempted to prove a subsequent agreement between Sleight and his creditors, for the purpose of showing that the transfer to her was only colorable; but the referee found that such agreement was not satisfactorily proved. In the course of the trial several questions arose as to the admission of evidence; and exceptions were also taken to the refusal of the referee to dismiss the complaint; and to his ultimate conclusions of law upon the facts as found. D. McMahon, for the appellant. Thomas G. Shearman, for the respondent. [MAJORITY — Porter, J.] Porter, J. 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 sepa/rate 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. Ho 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 Ms 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 á 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 attornev, or as matter of proof on the hearing, it cannot be retracted on a subsequent trial, unless by leave of the court. Mo 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. Mo 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 gestee, 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.