Porter v. Gamba

By the Court,

The defendant is a married woman, and the plaintiff sues to recover the amount of a book account for merchandise sold to her, as a sole trader, carrying on the business of keeping a. saloon and restaurant. The plaintiff had judgment and the defendant appeals, both from the judgment and from an order denying her motion for a new trial. The Court finds, that after a due compliance with the statute of 1862 (Stats. 1862, p. 108), the defendant was authorized, in her own name, as a sole trader, to- carry on the business of keeping a saloon. and restaurant, and that as such sole trader she purchased of the plaintiff the merchandise in question for use in her said business. It is objected, that the finding does not show a full compliance with the statute, because it does not appear that she was authorized to carry on the business on her own account as well as in her own name. But the Court finds there was a full compliance with the statute, which is equivalent to a finding that she was authorized to carry on thé business in her 'own name and on her own account. Kor can we disturb the findings on the ground that they were not justified by the evidence. There was *109evidence tending strongly to show that she purchased the goods as a sole trader, and promised to pay for them as such.; nor can she claim exemption from liability as a sole trader on the ground that she permitted her husband to manage and control the business of the saloon and restaurant. The third section of the Act of 1862 contains a provision to the effect that “ nothing contained in this Act shall be deemed to authorize a married woman to carry on business in her own name when the same is managed or superintended by her husband.” This provision was intended only for the protection of the creditors of the husband, and to prevent collusion and fraud between the husband and wife, but not to shield the wife from her liability as a sole trader. Creditors of the wife, dealing with her as a sole trader, would have but little security if their claims cculd be defeated at the option of the wife by her turning over the management of her business to her husband. Obviously this provision of the statute is not capable of the construction placed upon it by the defendant’s counsel. The objection to the form of the judgment is not well taken, and there was no error in the admission of testimony. The witness Pierson was called to contradict the defendant by proof of her admissions, and what he stated in respect to the pendency of the action before the Justice was only by way of inducement.

Judgment affirmed.

Mr. Chief Justice Sprague did not participate in the foregoing decision.