Major v. Holmes

124 Mass. 108, 1878 Mass. LEXIS 240

• Court: Massachusetts Supreme Judicial Court
• Decided: February 6, 1878
• Status: Published

Opinion

Gray, C. J.

Before the St. of 1874, e. 184, the female defendant would not have been liable in either of these cases, because contracts could only be made by a married woman in reference to her separate property, business or earnings. Gen. Sts. c. 108, § 3. Williams v. Hayward, 117 Mass. 532. Nourse v. Henshaw, 123 Mass. 96.

But this statute has removed that restriction, and in the broad ■ est terms enables a married woman to “ make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole,” and does not require that the consideration of her contracts should enure to her own benefit. The provision that nothing in this act shall authorize her “ to convey property to, or make contracts with, her husband,” is evidently not intended to impose any new restriction on her capacity, but merely to affirm the rule of the common law, so far as her husband is the other party to her grant or contract; and does not prevent both of them from binding themselves by a joint promise to a third person, within the authority conferred by the statute. Parker v. Kane, 4 Allen, 346.

The female defendant in each of the cases before us is therefore liable to the plaintiff upon her' contract with him, although, by reason of her incapacity to contract with or to sue her husband, no contract of indemnity could be made or implied as between them, as there might be in the case of two promisors capable of contracting with and suing each other. A contract of indemnity between principal and surety is no part of, and nowise affects their contract with the creditor. Penniman v. Vinton, 4 Mass. 276. Carpenter v. King, 9 Met. 511.

Judgments affirmed,.