Adams v. Honness, 62 Barb. 326

Adams v. Honness

62 Barb. 326 | N.Y. Sup. Ct. | 1872

By the Court,

Johnson, J.

The bargain finally settled and agreed upon, between the plaintiff and the defendants’ intestate, as established by the verdict of the jury, was, *335that the plaintiff should consent to give up her home and residence, in the State of Hew Jersey, and remove to Corning, in the State of Hew York, with her husband, and reside there as long as the intestate lived, and receive, in consideration thereof, the sum of $2000, at the death of the intestate. This was the final agreement, which the plaintiff, as the jury have found, fully performed on her part. The intestate was a man of considerable property, and his wife was a sister of the plaintiff’s husband. He had been a resident of the State of Hew Jersey, and lived near the plaintiff and her husband and family. A short time previous to the making of the bargain in question, the intestate had taken up his residence at Corning, and desired the plaintiff’s husband and herself and family to give up their residence in Hew Jersey, and remove to Corning, and reside near him. For this purpose he made a proposition to the plaintiff’s husband, which the latter was willing to accept, provided the plaintiff’s consent could be obtained to the change. The plaintiff, as the case shows, was reluctant to leave her home in Hew Jersey, but upon the intestate making her the offer, she yielded, and accepted the offer and consented to the .change, which was accordingly made; the plaintiff, with her husband and family, removing to Corning, where they .continued to reside near the intestate, at the place agreed upon, until his death. The agreement was verbal, and was made while the plaintiff and her husband were on a visit at the residence of the intestate, in Corning, shortly after his removal to that town.

We think this was a valid contract, so far forth as to bind the estate of the intestate, after full performance by the plaintiff on her part. Being wholly by paroi, as long as it remained executory merely, it could not have been enforced. The intestate might have rescinded, and put an end to it, at any time before performance by the plaintiff, had .he seen fit to do so. But he did not. He desired *336to have it performed and' carried out as it was; and it is quite too late now for his personal representatives to undertake to repudiate it. (Willetts v. The Sun Mutual Ins. Co., 45 N. Y. 45.) There can be no doubt that the consideration was sufficient to support the promise, especially after performance by the plaintiff.

It is contended, in behalf of the defendants, that the plaintiff being a married woman, was not competent to make a valid agreement of this kind, and that the promise, if made to her by the intestate, as alleged, was nudum pactum. But the promise was to her personally, and was obviously intended • for her personal and separate emolument, and for that the plaintiff, though a married woman, was clearly competent to contract. By the statutes of 1860 and 1862, respecting the rights of married women, (Laws of 1860, ch. 90, and Laws of 1862, ch. 172,) a married woman is expressly authorized <£ to carry on any trade or business, and perform any labor or services, on her sole and separate account, and the earnings of any married woman from her trade, business, labor or services, shall be her sole and separate property.” This necessarily includes the right, on the part of a married woman, to make valid bargains for her labor or services before they are performed. The bargain here was for something in the nature of a service, which the plaintiff was to perform in connection with her husband. There'were two separate agreements, one between the intestate and the plaintiff’s husband, and one with the plaintiff, and each, obviously, for their personal and separate benefit, respectively.

At the time the bargain in question was made, the plaintiff and her husband were residents of the State of Hew Jersey, but the agreement was made at the residence of the intestate, at Corning, in this State. It is of no consequence, therefore, what the laws of Hew Jersey are in respect to the competency of married women to make contracts for their separate benefit.

*337[Fourth Department, General Term, at Oswego, May 7, 1872.

Mullin, P. J,, and Johnson and Talcott, Justices.]

The contract was made in Yew York, and was to be performed here, and there is no limitation in our statute which confines its operation to such married women as are residents of the State at the time their contracts are made.

The plaintiff’s husband, though a party defendant to the action, was clearly competent as a witness. There was no error in the refusal to nonsuit, at the circuit; nor in the refusal to charge, as requested, in respect to the plaintiff’s residence in Yew Jersey at the time the contract was made. There is no evidence in the case tending to show that the agreement was made in that State. All the evidence goes to show that it was made at the residence of the intestate in this State. The charge was, in all respects, correct.

A new trial must therefore be denied, and judgment ordered on the verdict.