#### Kurtz *v.*Haines.

In. an action against a married woman for services, her declarations, made in the absence of the plaintiff, are inadmissible to prove that the plaintiff was employed by her husband against her consent.

The proper practice, on the trial of a case, where a party desires the court to charge specifically on the testimony of a particular witness, is to call the attention of the court to the testimony by a point; and, in the absence of such a request, the supreme court will not reverse for a failure to call attention to certain testimony.

The supreme court will not consider an assignment of error in the following form : “ The court erred in their answers to defendant’s several points. And in not affirming, without qualification, the ist, 2d, 3d and 5th points.”

May 16, 1888.

Error, No. 264, Jan. T., 1888, to C. P. Lancaster Co., to review a judgment on a verdict for plaintiff in an action of assumpsit for services, by John Haines against Barbara Kurtz and Henry Kurtz, her husband, at Jan. T., 1882, No. 6. Trunkey, J., absent.

The declaration contained the common counts in assumpsit for work and materials furnished, money lent, paid, received and found due, and on an account stated and this special count:

“ And the said work done by the plaintiff for the defendants was manual labor done by John Haines, plaintiff, on and about the farm of said Barbara Kurtz, one of the defendants, and it was necessary for the improvement and maintenance of her, said Barbara Kurtz’s, real estate, and it was done at her special instance and request.”

The declaration concluded with an averment of a promise, breach, etc. The defendant pleaded non-assumpsit, payment, payment with leave and set-off A plea of coverture was afterwards added.

Samuel Kurtz, a son of defendants, was asked this question, on the trial before Livingston, P. J.:

“ Q. If you were present at any time when ybur mother spoke to your father about Mr. Haines, state what she said about Mr. Haines being employed there in 1880 or 1881, while Mr. Haines was working.” Objected to by plaintiff, disallowed and exception.

• “ Q. State if you know if Mrs. Kurtz received any of the income of the farm from the time she became the owner of it until March 27, 1881, when Grissinger discharged the plaintiff” Objected to by plaintiff, disallowed and exception.

“ Q. Please state whether you did not furnish the money for the support of your mother during that same time.” Objected to by plaintiff, disallowed and exception.

The charge of the court was as follows, by Livingston, P. J.:

“ Mrs. Barbara Kurtz is the owner of a farm of 116 or 117 acres, near the borough of Mount Joy, Lancaster county, which had formerly been owned by her husband, Henry Kurtz. He was unfortunate, and, in 1880, was sold out by the sheriff, and she, about Jan. *32919, 1880, purchased. the farm at sheriff’s sale, and has been the owner of it from that time.

“ The suit is brought by plaintiff to recover from her, the amount he claims, for work and labor done, for Mrs. Kurtz on her farm, from Jan. 19, 1880, to March 23, 1881, a period of 426 days, at $1 per day, he finding his own boarding, making in all $426.00. He says he has received, in payment, on account, $232.70. This, if entitled to recover, would leave due him $193.30, with interests from March 23, 1881. Defendants claim that he has been paid $283.09, which, if entitled to recover, would leave due him $132.91, with interest from March 23, 1881.

“ Mrs. Kurtz is a married woman, and the owner in her own right of the farm in question. A married woman must contract for, authorize, or consent to have, the labor performed on her farm, to bind her or her estate to pay for it.

“ It has been held that a married woman has no power to contract but what the statute grants her. Her contracts for repairs and improvements come from the power to have, use and enjoy her separate estate, or she has no power to make such contracts. And, if she can make such contracts, the power comes by implication. Hence, the American rule is enlarged, and she can make the contracts which the statute expressly, or by necessary implication, gives her the power to make.

“ In harmony with this ruling, on the adjudications, holding the wife’s estate liable to a mechanic’s lien, for work done and materials furnished at the request, or on the contract, or upon the authority, and with the consent, of the wife, even if erected by the husband, and in his own name, she can make a binding lease, leasing her real estate to another person. Or she can lease real estate from another, and become a lessee and tenant, and can then employ laborers to labor for her on such farm and enable her to reap the ordinary productions of the soil, or to feed and care for her stock, and increase its value, and make it more valuable for her benefit.

“ So, where she owns a farm and owns the stock upon it, the law, which allows a married woman to own and hold a farm, permits her to use, occupy and farm it, and to purchase stock and farming implements, allows her to employ and hire labor necessary to properly farm it, and receive its products, and improve and increase its value. If this power were not given her, her real estate would be of no use to her, she would not be benefitted by such statute, or the permission to have and hold such real estate. It would be of no use or value to her, unless she could, by labor, cause it to produce an income. We say, that authority is given her, if not by express words, by implication, to employ laborers to work on her farm.

“ Haines, the plaintiff, says he remembers the time of the sheriff’s sale, and that Mrs. Kurtz purchased the farm, and, after she *330bought it, he went to see her about his continuing on at work on the farm. He saw her, as he told you, in a room adjoining an office at the place he named; asked her about work; told her he had been getting $1.00 per day, that she said he should go on and work and she would pay him. She told him the old man was her agent; that the old man looked after the place; came down every day. That he went to work, and continued to work, and Mrs. Kurtz paid him from time to time; sometimes the old man had not the money and she paid him, and sometimes he sent his son for money for his labor, and she paid him; that he worked continuously, late and early, every day, Sunday and Saturday; did all kinds of work. He is one of the contracting parties.

“ Mrs. Kurtz says she made no contract with Haines, had no conversation with him in which she told him to work for her. If she had, she don’t recollect it; and if she had said so, she thinks she would know it. She admits she paid him some money for his work, himself, and, when he sent his boy for money for his work, she paid the boy, on several occasions, for his father for work. This would seem to corroborate Haines when he says she employed him to work for her after she bought the farm.

*“*These are the parties themselves, the only parties who were present when the contract was made, if made — the only parties who , know. It was not necessary it should be in writing; that would not have made it better; nor was it necessary there should be witnesses present. Both parties could testify, they have done so, and you will say if there was a bargain or not, or an employment.

“ [There appears to be no dispute as to the time he worked there — 426 days — ] [3] and the evidence shows that he worked there constantly, at all kinds of work; every day had charge of the team and was the only man who did work all the time. Others were employed at odd jobs, harvest, husking corn, stripping tobacco, etc. [He worked there from the time she purchased until March 23, 1881,] [3] when he was discharged by her agent, as she and they tell you, and he says he worked no more for her after that.

*“*Was he or not employed or authorized by her to work for her as he states, at the rate he mentions ? This is for you. If he was, if the evidence so satisfies you, then he would be entitled to your verdict — if his statement of the credits he gave her for money received be correct — $232.70—for $193.30 with interest from March 23, 1881; and if defendants’ statements of payments made him be correct — $283.09—he would-be entitled to your verdict for $132.91 with interest from March 23, 1881.

“ Or if you find that she contracted with, authorized or consented to his working on the farm for her, and no price was fixed, he would be entitled to be paid what his services were reasonably worth, and if you find from the evidence that his services were not worth $1.00 per day and board himself, you will allow him only what his services *331were reasonably worth. Of course, there must be employment, or consent, to warrant a recovery.”

On the question of the employment, embraced in the 3d assignment of error, the plaintiff testified as follows:

“ After the wife bought the place, I went to see her about continuing at work on it. Saw her at her house in room adjoining office. I told her I was getting $1.00 per day. She said I should go on and work and she would pay me. She said the old man was her agent.....Worked on the farm the first three months in 1881.....Worked there in 1880 and 1881 in consequence of what she told me. Worked for her after Henry Kurtz was sold out by the sheriff.”

Cross-examined: “.....I had the conversation with Mrs. Kurtz in the room along side of old tanyard office. I got money at that time, *$2.00.*Cannot tell whether it was the first, or a couple weeks after I went there for money. It was, I think, one of those times in August. I told her I was getting $1.00 per day the year round. She said that was all right. That was all the conversation. Her son and Grissinger never told me any thing. The old man said he was agent, and he came and told me what to do. Samuel nor Grissinger never told me they were agents. After she got the farm, the work was the same as before.”

Re-examined: “ I don’t remember the date of sheriff’s sale. There was a sheriff’s sale. It was about the time of sheriff’s sale I had the talk with her. After I quit work, I went to her for money, and she said she had not the money. She said she would pay.”

The sheriff’s deed, dated Jan. 19, 1880, was .given in evidence.

Verdict and judgment for plaintiff.

*The assignments of error*specified that the court erred, 1, in over-ruling defendants’ offer to prove by Samuel Kurtz and other witnesses, that plaintiff was employed and kept on the farm by the husband against the wife’s consent and repeated protestations, and that the wife got none of the income of the farm during the time plaintiff worked on same ; 2, in their general charge, and comments on the facts and testimony, by altogether ignoring the testimony of Henry Kurtz, the husband and principal witness, -who testified positively that'he hired the plaintiff and carried on the farm for himself; 3, in charging as in brackets, quoting it; 4, in the answers to defendants’ several points, and in not affirming, without qualification, the 1st, 2d, 3d and 5th points; 5, in not granting a new trial to let in defendants’ after-discovered evidence, that plaintiff could not write.

N *P. Eby,*for plaintiffs in error.

“ The declarations of a wife, not made in the presence of the grantee, while the deed is being prepared, of her unwillingness to execute it, were admissible in evidence as part of the res gesta.” Louden *v.*Blythe, 27 Pa. 22.

Proof of notice need not be shown to a mortgagee of the mar*332ried woman’s defective acknowledgment, to enable her .to prove such defect by parol evidence. Michener and wife *v.*Cavender, 38 Pa- 334-

Oct. 1, 1888.

In our case, taking it at its best, it was a very uncertain kind of a parol agreement. And the husband holding possession of farm and stock,-and managing the farm, with the continued absence of the wife, was sufficient notice to Haines that she was not running the place.

While the court commented fully on plaintiff’s testimony against defendants, not a word is said in the charge of what Henry Kurtz testified in. our favor. By this, defendants’case was prejudiced.

On the question whether the alleged promise of Mrs. Kurtz, made in August, will hold her for work done prior to that time, we cite Berger *v.*Clark, 79 Pa. 340, in which it was held that a wife can not be made liable for necessaries by subsequent declarations.

Where a defendant can produce after-discovered evidence tending to prove that any material part of plaintiff’s testimony was false, he is entitled to have his case submitted to another jury. Struthers *v.*Wagner, 6 Phila. 262; Wurts *v.*Walton, 6 Phila. 578.

*J. Hay Brown,*for defendant in error.

Applying Fenn *v.*Early, 113 Pa. 264, and innumerable cases that might be cited, to the record of this case, no error whatever can be detected.

Per Curiam,

There is nothing in the defendants’ assignments of error which would warrant us in reversing the judgment of the court below.

r. The declarations of Mrs. Kurtz, in the absence of the plaintiff, and not conveyed to him, were not admissible, and the offer was properly ruled out.

2. If the defendants desired the court to charge specially on the testimony of Henry Kurtz, attention should have been called to it by a point.

3. We have carefully gone over all the testimony which is to be found in the paper-book, and discover nothing by which a dispute could be raised as to the time the plaintiff worked on the defendants’ farm.

4. This assignment is not according to rule; hence we decline its consideration. '

Judgment affirmed.