#### JAMES WEIR, Respondent, *v.*GERTRUDE GROAT, Appellant.

*Married woman —•contract by—intention to chan'ge the same upon Tier separate estate.*

Where a contract made by a married woman is not for the benefit of her separate estate, she is not liable thereon unless the intention to charge the same be expressed in the contract.

Appeal from a judgment for the plaintiff, entered on the report of a referee.

This judgment was obtained for the value of groceries and provisions, sold by the plaintiff to the defendant. She is a married woman, having a separate estate, and living with her husband and children, for whom the husband ordinarily provides. The husband had been buying on credit of plaintiff, until the plaintiff would not trust him any longer. He then saw the defendant at her house, and the following contract was made between them: *“*She said, would I give her a book ; she wanted to trade on a book; I told her, yes, I would give her a book if she would be responsible; she said she would be responsible; I told her I would not trust her husband, and she said she would not ask me to trust him, but that everything that was got she would be responsible for.” At the same time she said she owned “ that property,” meaning the house and lot where they lived. After the debt was made she promised to pay it. This is the only evidence of an intent to charge her separate estate with the payment of this debt. On this evidence the referee found as a fact, that she agreed to pay for the same out of her separate estate. From the judgment against her she appeals.

*194
      *R. A. Parmenter*and *Geo. Day,*for the appellant.

The plaintiff must show affirmatively that the debt was contracted by the defendant either for the purpose of carrying on a separate trade or business, or for her own exclusive benefit upon the credit of her separate estate, or that the intention to charge her separate estate was expressed in the contract itself, or that the consideration was one going to the direct benefit of her separate estate. *(Yale v. Dederer,*22 N. Y., 460; *White, Exrx.,*v. *McNett,*33 id., 371; *Corn Exchange*v. *Babcock,*42 id., 613; *Ballin*v. *Dillaye,*37 id., 35 ; *Hallock*v. *De Munn,*2 N. Y. S. C., 350; *Deck*v. *Johnson, 2*Keyes, 348; *Smith v. Allen,*1 Lans., 101; *Scmidt*v. *Costa,*3 Abb. [N. S.], 188 ; *Coakley*v. *Chamberlin, Ex., etc.,*8 id., 37, 44; *Demott*v. *McMullen,*id., 337; *Valentine*v. *Lloyd,*4 id., 371.)

*Irving Browne*and *Albert Smith,*for the respondent,

cited *Maxon*v. *Scott*(55 N. Y., 247); *Yale*v. *Dederer*(22 id., 456, 460); *Corn Ex. Ins. Co.*v. *Babcock*(42 id., 644); *Kelty*v. *Long*(4 N. Y. S. C., 163); *Owen*v. *Cawley*(42 Barb., 105); *Jacques*v. *M. E. Church*(17 Johns., 581); *Buckley*v. *Wells*(33 N. Y., 518); *Demott*v. *McMullen*(8 Abb. [N. S.], 335); *Robinson*v. *Rivers*(9 id., 144); *Valentine*v. *Loyds*(4 id., 371); *Ledlie*v. *Vrooman*(41 Barb., 109); *Gardner*v. *Gardner*(7 Paige, 112); *Quassaic Nat. Bank*v. Waddell (8 S. C., 125).

Boardman, J.:

The case of *Baken*v. *Harder,*decided at this term,* presents the same legal question, upon the same state of facts, and is decisive. It cannot be claimed that this debt benefited her separate estate, and thereby became a charge. It was the husband’s duty to support the family, and he was the person benefited by the property bought. In order to charge her estate, therefore, she must express such intention in her contract. This she has not done.

The respondent labors under 'the false idea, that such intention may be inferred from her simple promise to pay. That would destroy the only distinction now remaining between the contracts of a married and unmarried female. No case goes to that extent. *195In *Maxon*v. *Scott,*
      * the court says : “ The charge may be made by an oral contract made upon a good consideration *expressing such am, intention,*equally as though the contract was reduced to writing.” It must be expressed. In *Kelty*v. *Long,*
      † and *Owen*v. *Cawley,*
      *‡*
      **the property was bought for the benefit of the separate estate, and for ■ that reason the wife was held liable. The wife may, if she pleases, charge her property with any debt, bnt it is only when it benefits her estate that the intent to charge it thereon becomes unnecessary. In all other cases such intent to charge must he a part of the contract.

The authorities to sustain these principles are too familiar to need citation. The referee therefore erred in 'finding from the evi- , dence in the case, an agreement to bind and charge her separate estate, made by the defendant in connection with this debt. For this reason the judgment should be reversed, and a new trial be granted, costs to abide the event.

Present — Learned, P. J., Boardman and James, JJ.

Judgment reversed and new trial granted, costs to abide event.

See-p.

55 N. Y., 251.

4 N. Y. S. C., 163; S. C., 1 Hun, 714.

**42 Barb., 105.