Holmes v. Holmes

| Conn. | Apr 15, 1873

Park, J.

It is not claimed by tlie plaintiff that he can recover in this action at law, unless his case comes within the provisions of tlie statute of 1869, which provides that “ whenever any married woman shall carry on business, and shall incur any debt or obligation on account of the same, or shall execute any promissory note or oilier instrument in writing, either alone or jointly with her husband, for tlie bonfit of the joint estate of herself and husband, she shall be liable for any sncli debt or obligation and upon such note or instrument,” &c. The question then is, whether tlie case of the plaintiff comes within tlie provisions of this statute.

As it is not claimed that there was any note or oilier obligation in writing given by Mrs. Holmes tlie case of course can not come within the last provision. Under the first provision she must have been engaged in carrying on some kind of business, and the debt or obligation to tlie plaintiff must have been incurred in order to aid in tlie prosecution of that business.

What business was Mrs. Holmes carrying on when she made tlie contract with the plaintiff out of which this suit has arisen ? None whatever. All the business she transacted consisted of tlie contract she made with the plaintiff, and it ended with the fulfillment of the contract. It was business that comprehended but one transaction, the procuring of a tenant, and it may have continued but ail hour. If this is “ carrying on business” within the meaning of the statute, the expression might as well have been omitted, so that tlie statute would read, “Whenever any married woman shall incur any debt or obligation whatsoever on her own account she shall be liable,” &c., for no such debt or obligation could be incurred without growing out oí some business transaction in which she engaged. The statute must have a common sense construction. It is manifestly absurd to say that a person is engaged in buying and selling horses if on a single occasion he should sell one horse and buy another, or that a woman is engaged in the business of farming, if she should employ a man to do some trifling work in one of her fields.

What -is meant by the expression is, that the married woman must be pursuing a business as an employment, to the carrying on of which she devotes a considerable portion of her time, and skill and means — a business that is continuing in its nature and embraces many transactions.

We think therefore that the court erred in not complying with the request that was made by the defendants, that the jury should be instructed “ that the term carrying on business, as used in the statute, does not include a case like the one in suit, of renting a few chambers in the dwelling house occupied by the married woman with her husband)” and for this cause we advise a new trial.

In this opinion the other judges concurred.