Westgate v. Munroe

Hoar, J.

The defendant, being the owner of real estate which was conveyed to her sole and separate use, had, although a married woman living with her husband, the same power to make a contract respecting it as if she were sole. Gen. Sts. c. 108, §§ 3, 5. The exception that she cannot convey it without her husband’s assent is not material in the present case. We therefore so far agree with the ruling at the trial as to entertain no doubt that if a person, with the knowledge of the owner, performs valuable services upon the separate property of a married woman, it is evidence of an employment by her, and may authorize a jury to find a contract by her to pay for it. But we do not think that this is a presumption of law which would authorize the learned judge to withdraw the case from the con *228 sideration of the jury, and direct them to find a verdict for the plaintiffs. It is a mere inference of fact, which only .the jury are competent to make. 2 Greenl. Ev. § 108.

In James v. Bixby, 11 Mass. 37 , cited for the plaintiffs, it is said by the court that “ when a ship is repaired under the eye of the owner there is an implied promise on his part to pay for the work; as there is against the owner of a house, that he will pay for repairs done upon it; the law in such cases presuming a request, if the owner suffers the work to proceed.” There was no occasion for absolute accuracy in the statement of the rule which the court used as an illustration; but it would have been more accurate to say that the law considers it “ as evidence from which a request may be presumed.” The question is still open whether there was an actual employment by the owner. Thus, where there is a tenant in possession, it would be a question for a jury, whether, from the nature of the repairs, and all the other circumstances of the case, they would believe that the work was done for the tenant or the landlord.

In the case at bar, the defendant was living with her husband and family in the house upon which the repairs were made. There was evidence tending to show that the plaintiffs received a partial payment for their work from the husband. These circumstances were for the consideration of the jury; who, if they were satisfied upon the whole evidence that the work was done for the defendant, might so find. But as the conclusion either way was an inference of fact, it should have been submitted to the jury. Exceptions sustained.