MAGIE, Ch.
(Syllabus by the Court.)
Bill by Fannie Turner against James H. Davenport and Jesse C. Turner. Decree for defendants.
Walter J. Knight, for complainant.
MAGIE, Ch. The bill in this cause was filed by Fannie Turner, a married woman, by a next friend, against her husband, Jesse C. Turner, and one James H. Davenport. It seeks a decree requiring defendants to pay her certain sums of money. The relief thus asked is put upon the following charges, viz.: That the defendants were partners in business, engaged in selling mantels, tiles, etc.; that Turner, complainant's husband, was manager of the firm, and actively employed in the business; that he engaged complainant to enter the service of the firm as a saleswoman; that no amount of compensation for such services was fixed, but it was agreed that the complainant should be paid such compensation as others usually received for such services; that the complainant rendered such services for a long period with the knowledge of Davenport and the other defendant, and that complainant thereby earned at least the sum of $10 per week. The bill further claims a small amount to be due her for services rendered to the firm, after she had quitted its employment as saleswoman, in makingJustice Depue as the undisputed rule in his opinion in the court of errors in Barnaby v. Bradley & Currier Co., GO N. J. Law, 158, 37 Atl. 764. Applying this doctrine, it is obvious that the amendments introduced into section 5 of the married woman's act in 1805 did not repeal the last clause of section 14, prohibiting husband and wife from making contracts with or suing each other except as heretofore. "Vice Chancellor Emery has reached the same conclusion, and expressed it in a memorandum filed In Bank v. Albertson, 47 Atl. 818.
But this conclusion does not dispose of the case under consideration; for, if the contract of a wife with her husband set up and proved in this case is not one included in the grant of contractual power contained in section 5 as amended in 1895, it may yet be enforceable in equity. Whether enforceable or not will depend upon whether it was a contract which, before the passage of the married woman's act, a court of equity would recognize and enforce although made between husband and wife. Equity will require a husband to account for the principal of his wife's estate received by him (Jones v. Davenport, 44 N. J. Eq. 33, 13 Atl. 652; Wood v. Chetwood, 44 N. J. Eq. 64, 14 Atl. 21; Id., 45 N. J. Eq. 369, 19 Atl. 622), and a wife reimburse a husband from her separate estate for moneys loaned her or applied by him for the benefit of her separate estate (Healey v. Healey, 48 N. J. Eq. 239, 21 Atl. 299). A firm of which the husband was a member may be held liable in equity to a wife who had loaned money to the firm. Gould v. Gould, 35 N. J. Eq. 37, 562. It is to be observed that the services rendered by the complainant to the firm of which her husband was a member were not within the line of those household services which the relation of wife to husband requires the wife to render. They were services outside of the family, and tended to the benefit of the firm of which he was a member. It is not contended that the equitable liability arose by implication from the rendition of such services, but the employment and the service rendered thereon were upon an express undertaking to pay the usual compensation. The question, then, is whether equity will enforce an express undertaking to pay for the value of such services. That a wife may employ her husband as her agent to conduct and manage a business established by her capital is thoroughly settled. Taylor v. Wands, 55 N. J. Eq. 491, 37 Atl. 315; Arnold v. Talcott, 55 N. J. Eq. 519, 37 Atl. 891. Whether and how the husband could enforce the payment of compensation for services rendered under such employment has not been, so far as I am aware, the subject of judicial consideration. It may be plausibly argued that for the same reason a husband whose capital is employed in business may employ his wife to serve outside of her ordinary family and marital duties in the said business. If so, the question is whether the wife may enforce a liability for her compensation by a bill in equity. But the husband's right to wages and earnings stands on a different fooling from that of the wife. He has always had unrestrained power to contract and render service, and compensation therefor was his absolute right. Nothing, however, is better settled than that at common law the wages and earnings of a married woman became, or could become, the absolute property of the husband. The money due her for services was a chose in action which he could reduce to possession in the manner pointed out by Chancellor Zabriskie, speaking for the court of errors, in Peterson v. Mulford, 36 N. J. Law, 481. The husband could refuse to reduce to possession the right of the wife to compensation for her services, and could permit her to take her own earnings, which she could appropriate to her own use; and they could be thus appropriated and held by her against her husband's creditors. Skillman v. Skillman, 13 N. J. Eq. 403; Id., 15 N. J. Eq. 478; Belford v. Crane, 16 N. J. Eq. 265; Stall v. Pulton, 30 N. J. Law, 430; Quidort's Adm'r v. Pergeaux, 18 N. J. Eq. 472; Bank v. Sprague, 20 N. J. Eq. 13; Peterson v. Mulford, ubi supra; Manufacturing Co. v. Hummell, 25 N. J. Eq. 45. By the provisions of section 4 of the married woman's act it is provided that the "wages and earnings of any married woman acquired or gained by her * * * in any employment * * * In which she is employed and which she carries on separately from her husband * * * shall be her sole and separate property as though she were a single woman." While the words seem to limit what becomes the wife's property to earnings acquired, they may probably be construed as conferring power to acquire by suit earnings due her for services rendered and not paid for. But, assuming that the statute has deprived the husband of the right to reduce to possession the earnings of the wife when employed by another person, and has conferred upon the married woman power to sue for and recover compensation for her services rendered to third persons, does it authorize her to contract with her husband for services, or to enforce payment or compensation from him? Had the husband paid the wife for her services in this case, I have no doubt that the money would have at once become her property under the statute and under the law as construed by our courts. But the clause of section 14 which we have considered and deemed to be still in force forbids contracts between husband and wife, or suits of one against the other, except such as previously could be made or brought. The right to wages in this case arose out of a contract unenforceable at law. A bill in equity for the wife's earnings under the employment of her husband was not one which could have been previously maintained,, because those earnings arose out of a contract between her and her husband, and had not been given to her. Ifthe contract between them established a chose in action, it was one which the husband could, prior to the passage of the act, reduce to possession, and hold absolutely; and a bill in equity would not lie therefor, for it would be absurd to say that the husband, having the earnings of his wife in his pocket, and refusing to pay them to her, had not reduced them to possession. It follows that the provisions of section 4 cannot relate to wages and earnings of a wife under the employment of her husband, unless in case he voluntarily pays them to her. If he declines to pay, she is remediless. The result is that the bill and proofs present no ground for a decree.