#### John H. Lockwood, plaintiff, *vs.*James R. Cullin, defendant.

1. In equity, generally, a husband may make a gift to his wife, *inter vivos;*and such gift may he made with or without the intervention of trustees. It need not he evidenced or made by formal deed of trust or of gift, or even by any formal writing, but may be by mere acts and declarations; and if necessary, the court will regard the husband, in such cases, as trustee for the wife.

2. Such rule in equity is not abrogated by the acts of the legislature, of 1848 and 1849, “ for the more effectual protection of the property of married women,” notwithstanding they declare that “ it shall be lawful for any married female to receive * * * * from any person *other than her husband."*

*3.*The decisions which hold that there must he something on the face of the instrument transferring property to a married woman indicating the intention of the giver to vest the property in the donee as her sole and separate estate, and to exclude the husband from any participation therein, have no application where the husband is himself the giver, during coverture. The hare fact of his making the gift is as strong evidence of his intent that it shall he the sole and separate property of his wife as any declaration in writing would be.

4. Even if the wife had not the full disposition of property thus transferred to her as her sole and separate property, without the assent or concurrence of her husband, yet where the husband stands by and sees his wife sign and *130deliver an assignment of such property to another, without objection, this is sufficient evidence of his assent and concurrence.

5. As under the acts of 1848,1849,1860 and 1862, a married woman can carry on business on her own separate account, and a stranger can set her up in business, *a fortiori*her husband can set her up in business on such account.

6. Having the right to carry on business on her own account, she has as much right to use the goods or money given her by her husband,'in carrying on her business as she has to keep them in her possession, and make personal use thereof. Her employment of her husband, as her agent, will not affect any rights which she would have had if she had employed a stranger, instead.

7. The principles above stated are applicable to cases arising between a married woman, or her assignees, and a debtor owing a debt claimed to be her separate property. Where the rights of creditors of the husband, or wife, or of the particular business, intervene, different principles may prevail.

Before Monem, Garvin and Jones, JJ.)

Heard February —, 1866;

decided -, 1866.

This action was brought on a special written agreement, given below, to recover certain annual subscriptions therein mentioned. In 1857, the firm of James Henderson & Co. composed of James Henderson and the plaintiffs, carried on the business entitled a “ Protective Trade and Collecting Agency.” One branch of this business was to obtain information concerning persons and impart such information to the subscribers to the agency. The firm had a book prepared, containing a list of names up to the 1st October, 1858.' It had a form of an agreement prepared, which was as follows ;

“We, the undersigued subscribers to James Henderson & Co.’s Protective Tradfe and Collecting Agency, hereby acknowledge having received from said Henderson *&*Co. for our exclusive use, a book containing a list of names up to October 1, 1858, and it is expressly agreed between the undersigned subscribers and said Henderson •& Co. that the information contained in said book, and all information received from said agenpy, shall be held as strictly confidential, and that said book shall be returned whenever our subscription terminates, and no subscription shall be considered terminated until this said book is returned to Henderson *&*Co.”

The defendant, Guilin, had signed this form of agreement on ifovember 30, 1858. The plaintiff’s testimony is to -the effect *131that the hook mentioned in this agreement was delivered to the defendant. This is contradicted by the defendant’s testimony.

The defendant, at various times between November 30,1858, and November 20,1860, obtained from the agency information concerning the responsibility of various parties. Another book was published by the agency about February 1, 1860, which was given to the defendant sometime in 1860, and. retained by him until May, 1864. The first book has never been returned to James Henderson & Co.

There was evidence on behalf of the defendant to the effect ■ that the defendant never used either of the books, or sent to the agency for information after November, 1860, and that in the latter part of 1860, or 1861, the defendant notified James Henderson that he did not wish to continue his subscription. The yearly subscription was $30. This action was brought on the foregoing agreement, to. recover for six years’ subscription, from November 30, 1858, to November 30,1864, less the amount of the first year’s subscription ($30.)

The plaintiff, by his complaint and proof, made title to the claim through assignments, in the words and figures following :

“For value received, we hereby sell, assign and- transfer all our interest in the foregoing books, and all subscriptions due and to become due therefor, to J ohn H. Scott.

March 10th, 1862. Jas. Hendebson & Co.”

2d. An assignment as follows :

“ For value received, I hereby sell, assign and transfer all my right, title and interest, in and to the foregoing books, and to all subscriptions due and to become due thereon, to Phebe A. Henderson and John H. Lockwoood.

March 10th, 1862. J ohn H. Scott.”

And proof that after March 10, 1862, the firm of James Henderson & Co. was composed of the plaintiff and Mrs.-Phebe A. Henderson, and the business was carried on by those two persons under that firm name. James Henderson directed and *132managed the business for his wife Phebe A. as her agent, without her taking any active part in the business, or giving any personal attention to it.

3d. A bill as follows :

“ Mr. James B. Guilin to James Henderson & Co. Dr. To six years’ subscription from Nov. 30th, 1858, to November,

30th, 1864, at $30 per annum,......$180 00

Cr. By cash on account,......... 30 00

Indorsed as follows : $150 0Ó

For value received, I hereby sell, assign and transfer all my interest in and to the within claim to John H. Lockwood.

Dated New York, May, 1864. P. A. Henderson.”

, Phebe A. Henderson, during all this time, was the wife of James Henderson, who stood by and saw her sign and deliver the last above assignment, without objecting.

The answer puts in issue the plaintiff’s title, and sets up as affirmative defenses, that the subscription was but for a single year ; that Henderson & Co. had broken the contract on their part, in that they had failed and refused to give information when demanded; that in -consequence of such breach the defendant had notified the firm that he desired to discontinue his subscription; that Henderson *&*Co. never had any plan or system for obtaining information, and that this pretended business was a mere fraudulent scheme to obtain money.

There was evidence tending to support these affirmative defenses, except the last one; and there was also evidence tending to disprove them.

Upon the closing of the testimony on both-sides, the defendant’s counsel moved to dismiss the case, on the ground, among others, that it appearing that Phebe A. Henderson was a married woman, and the subject of the action not appearing to be part of any separate estate of hers, or to result from, or to be necessary to any trade or business carried on by her separately, an assignment by her, of her interest in the claim, to the plaintiff, without the assent or authority of her thusband, was invalid.

*133The motion was granted, and the complaint dismissed. An exception was taken, and the exception was ordered to be heard first at a general term.

*D. O. Birdsall,*for the plaintiff.

*Arthur <& Oar diner,*for the defendant.

By the Court,

Jones, J.

There are two distinct branches to this case. The one relating to the subscription earned prior to the assignment to Scott; the other relating to the claim for subscriptions subsequent to that period. As to the subscription earned prior to the assignment to Scott, that was a demand then due and owing. If this debt had been owing to an entire stranger, there is no question but that Mrs. Henderson, under the acts of 1848, 1849, 1860 and 1862, would, by an assignment thereof to her, by such stranger, have taken it as her sole and separate property, and would have had complete authority to assign it, not only without the consent, but without the knowledge of her husband.

If, then, the debt, by reason of the assignment to Scott, and the assignment by Scott to the plaintiff and Mrs. Henderson, is to be regarded as not coming from the husband to her, she had full authority to assign it, without the consent or knowledge of her husband. '

If, however, under all the circumstances, the debt is to be regarded as coming to her from her husband, then the acts of 1848, 1849, 1860 and 1862, have no application to the case, and her title to it as' her separate property, and her right to dispose of it, must depend on the principles of jurisprudence existing before the passage of these acts.

In equity the rule obtained that a husband might make a gift to his wife *inter vivos,*and that such gift might be made with or without the intervention of trustees ; that such gift need not be evidenced, or made, by any formal deed of trust or of gift, nor by any formal writing, but might be made and evidenced by acts and declarations ; that if necessary the court *134will regard the husband as trustee *for*the wife. *(Neufville*v. *Thomson,*3 *Edw.*92.)

In this case, I think the various assignments are amply sufficient to constitute a gift to the wife, as between husband and wife, of the matters assigned, as and for her sole and separate property.

It is true that there is nothing on the face of either of the assignments, indicating'that the intention of the giver was to vest the property in the wife as her sole and separate estate, and to exclude the husband from any participation therein. There is a line of decisions holding such an indication to be, ordinarily, necessary. That line of decisions, however, has no application where the husband is himself the giver, during coverture. The bare fact of his making the gift, is as strong evidence of his intent that it should be the sole and separate property of his wife, as any declaration in writing would be.

Thus, then, according to the equity law as it stood prior to 1848, and as it still stands, the assignments in this' case would vest the assigned property in the wife, as her sole and separate property.

The property then being her sole and separate property, she had the full power of disposition over it, without the assent or concurrence of her husband. *(Powell*v. *Murray, 2 Edw.*635, *cited from*642.) Even if this were not so, yet here the husband stood by and saw his wife sign and deliver •the assignment, without objection. This is sufficient evidence of his assent and concurrence. *(Powell*v. *Murray,*10 *Paige,*256.)

It may be suggested that inasmuch as the words of the acts of 1848 and >1849 are, *“*It shall be lawful for any married female t.o receive * * * * from any person *other than her husband,”*those acts abrogate the equity rule above referred to. I think this is not the proper construction. The title of the act of 1848, (of which act that of 1849, is an amendation,) is “ An act for the more effectual protection of the property of married women.” The spirit of all the acts, as indicated by their titles and provisions, is to enlarge and *135not curtail the rights and privileges of married women in acquiring, holding, and disposing of property. . A construction then should not be given, which would take away rights and privileges enjoyed by married women, before the passage of those acts, since such construction would be in direct conflict with the general tenor and spirit of the legislation. If, however, such construction is impelled by direct, unambiguous words and expressions, the court must so construe the acts. But I think that the language of those acts does not imperatively call for such a construction. There are no negative words, making it unlawful for a wife to receive property from her husband in the manner, theretofore, recognized by equity. If, then, those acts take away such previously existing right of the wife, it must be by implication from the use of the words “other than her husband.” Now, although perhaps these words may be so construed as to prohibit the wife from receiving property from the husband, yet they are also capable of being construed as being inserted for the mere purpose of limiting the provisions of the act to property other than that received from the husband, leaving the transfer or gift of property, from the husband to the wife, to be effected, and the wife’s rights and powers over and in relation to such property to be regulated, according to the law as it stood, prior to the passage of the act.

This latter construction should be adopted under the rule that the spirit of the law may be referred to' in order to interpret words admitting of two meanings; *(Beebee*v. *Griffing,*14 *N. Y. Rep. 235*;) and that the intention of the law giver is to be adduced from a view of the whole and every part of a statute to be taken and compared together, and the real intention when actually ascertained, will always prevail over the literal. *(People*v. Draper, 15 *N. Y. Rep.*532.)

It is immaterial, then, whether this debt due from the defendant, came to the wife from her husband, or from a stranger. In either event the plaintiff obtained a good title through the wife’s assignment.

*136The plaintiff should not have been non suited as to the amount claimed to be due November 30, 1861.

This brings me to the second branch of the case, which .is as to the amount claimed to have become due subsequent to the assignments to and by Scott, and while. the business was carried on by the plaintiff and Phebe A. Henderson, Under the acts of 1848, 1849, 1860, and11862, it is perfectly clear that a married woman can carry on business on her own account, and that a stranger can set her up in business. It is, however, urged that a husband cannot set his wife up in business. I am unable to see why not. He can, as is seen above, give either money or goods to his wife, to be held by her as her separate property. After he has made the gift, it is no business of his, what she does with the goods. As the law allows her to carry on.business on her own account, she has as much power and right to use the goods or money given her by her husband in carrying on her business, as she has to keep them in her possession, and make personal use of them.

The tact that she employs her husband as an agent, does not affect rights which she would have if she had employed a stranger.

It must be understood that the remarks thus far are intended to apply only to cases arising between a married woman, or her assignees, and a debtor who is claimed to owe a debt which is alleged to be the separate property of the' married woman. It is not intended to apply them to cases where the rights of creditors of the husband or the wife, or of the business, intervene. In such cases all, or only part, or none- of the above principles may apply according to the facts and circumstances of each case.

There is an objection to the plaintiff’s right of recovery on this branch of. the case, remaining to be considered. This objection is that the original contract calling for the personal services of James Henderson, his assignees cannot perform the contract apd recover the stipulated compensation therefor.

. It is clear that if a man contracts to render personal services to another, he cannot by assigning his contract, or in any other *137way, force his employer to accept the services of some other person-. If he assigns his contract, it is a breach of it, and the employer may elect to consider it at an end, and recover damage for its breach. But it is equally clear that the employer may consent to have an assignee substituted in the place of the original employee, and that such substitute, upon performing the contract, will be entitled to recover the stipulated price therefor. Nor is it necessary that there should be an express consent; it may he implied from the employer with knowledge of the assignment standing by and seeing the work performed by the assignee.

The question that arises in this case, however, is whether an assignee of such a contract can go an and perform, "and recover the pay for the performance of the contract, in cases where the employer was ignorant of the assignment and of the fact that the work was being performed by the assignee ? I think he can, in those cases where all the conditions precedent to the pay, (except the one of the work being done by the original employee,) have been performed in a manner just as good and as satisfactory to the employer as if done by the original employee, and the employer has received all the expected benefit of the work. I see no reason why the employer should in such a case escape payment.

In the case at bar the contract was to pay $30 a year for the use of a certain book, and for receiving such information as the defendant asked for. The assignment did not interfere with the use cf the book, nor make such use less valuable, or less satisfactory. Since the making the assignment, the defendant has not asked for any information, other than that contained in the book. He did not know of the assignment; so that the fact of its having been made, did not cause him to cease making inquiries. On this motion we can only ascribe as a reason for his leaving, that he had no occasion to make inquiries.

It seems to me that the new firm has fully performed the contract of the old firm, and that the defendant has not been *138one whit injured hy the substitution of Phebe A. for James Henderson.

The defendant, by his contract, was to pay $30 a year for the use of the book, and for such additional information as he might require ; if he required no additional information, then of course he paid his $30 for the mere use of the book. Thus under the plaintiff’s evidence, as he did not require any Additional information after ¡November, 1860, he would have been obliged to pay the original firm of James Henderson & Co., (conceding no change to .have taken place in the members of the firm,) his annual subscription for the mere use of the book. According to the plaintiff’s evidence, he has used this same book during the term sued for, and I see no reason why the hare fact of there having been a change in the members of the firm should exonerate him from payment for such use.-

For these reasons, I think there was error in dismissing the complaint.

• The exception to the granting of the nonsuit must be sustained, the nonsuit must he set' aside, and a new trial ordered, with costs to abide the event.