This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
By certain local customs, as in the city of London, a married woman might contract as a sole trader if her business was in fact free from her husband's control.1 These customs were not generally adopted in this country except possibly to a modified extent in South Carolina.2 The remaining classes of cases were said to arise out of necessity, though it will be seen that there is not absolute uniformity as to when it is necessary to allow a married woman to make contracts as if single. If the husband was an alien and had never been in the jurisdiction of the wife's residence,3 or if whether an alien or not he had left such jurisdiction under such circumstances as would preclude
2 Stapleton v. Poynter (Ky.), 53 L. R. A. 784; 62 S. W. 730.
3 Austin v. Davis, 128 Ind. 472; 25 Am. St. Rep. 456; 12 L. R. A. 120; 26 N E. 890.
4 As of notes owned by her. Brewer v. Hobbs (Ky.), 30 S. W. 605.
5 Threefoot v. Hillman, 130 Ala. 244; 89 Am. St. Rep. 39; 30 So. 513.
6 Brown v. Dalton, 105 Ky. 669; 88 Am. St. Rep. 325; 49 S. W. 443.
7 Boupliner v. Laughlin (Ky.), 64 S. W. 856.
8 Terry v. Robbins, 128 N. C 140; 83 Am. St. Rep. 663; 38 S. E. 470.
9 King v. State, 42 Tex. Cr. App.
108; 96 Am. St. Rep. 792; 57 S. W. 840.
10 Collins v. Hall, 55 S. C. 336; 33 S. E. 466; Stewart v. Conrad, 100 Va. 128; 40 S. E. 624.
1 Lavie v. Phillips, 3 Burr. 1776; Newbiggin v. Pillans, 2 Bay (S. C.) 162.
2 Jacobs v. Featherstone, 6 AY. & S. (Pa.) 346.
3 Derry v. Mazarine, 1 Ld. Raym. 147; Walford v. Pienne, 2 Esp. 554; Gaillon v. L'Aigle, 1 Bos. & P. 357; Gregory v. Paul, 15 Mass. 31; Gregory v. Pierce, 4 Met. (Mass.) 478; Troughton v. Hill, 3 N. C. 406; Levi v. Marsha. 122 N. C. 565; 29 S. E. 832; Wagg v. Gibbons, 5 O. S. 580; Bean v. Morgan, his return, as where he abjured the realm,4 or was banished,5 she might contract as a feme sole. A similar hording has been made where the husband has left the state as a fugitive from justice.6 If the husband abandons his wife, leaves the state in which they were residing and takes up his residence elsewhere permanently, the English authorities hold that the married woman has not the power to make contracts,7 even if he is an alien.8 American authorities hold that such facts confer capacity to contract.9 Indeed if the abandonment is absolute and the husband leaves the state without the intention of returning, it seems immaterial whether he is permanently domiciled in any specific foreign jurisdiction.10 If the husband abandons the wife and is absent and unheard of for so long a time that the presumption of death arises (a length of time often held to be seven years,) the wife has power to contract.11 But where the husband has abandoned the wife, but has neither left the state permanently nor has been absent and unheard of, the weight of authority seems to be that such facts do not remove the disability of the married woman, even though the contract is for necessaries.12 Still less of course does capacity to contract arise where the husband is often away for long periods of time, but does not abandon his wife.13
4 McCord (S. C.) 148; Robinson v. Reynolds, 1 Aiken (Vt.) 174; 15 Am. Dec. 673.
4 Carrol v. Blencow, 4 Esp. 27. "An Abjuration, that is, a Deportation forever into a foreign Land like to a Profession ... is a Civil Death; and that is the reason that the wife may bring an Action or be impleaded during the natural life of her Husband." Co. Litt. 133a.
5 Co. Litt. 132b. 133a; Ex parte Franks, 7 Bing. 762.
6 Cheek v. Bellows, 17 Tex. 613; 67 Am. Dec. 686. But in Texas, permanent separation gives the wife the powers of a feme sole.
7 Marsh v. Hutchinson, 2 Bos. & P. 226; Williamson v. Dawes, 9 Bing. 292.
8 Kay v. De Pienne, 3 Campb. 123.
9 Rhea v. Renner, 1 Pet. (U. S.) 105; Krebs v. O'Grady, 23 Ala. 726; 58 Am. Dec. 312; Mead v. Hughes, 15 Ala. 141; 50 Am. Dec. 123; Roland v. Logan, 18 Ala. 307; Arthur v. Broadnax, 3 Ala. 557; 37 Am. Dec. 707; Cornwall v. Hoyt, 7 Conn. 420; Love v. Moynehan, 16 111. 277; 63 Am. Dec. 306; Gregory v. Pierce, 4 Met. (Mass.) 478; Abbott v. Bayley. 6 Pick. (Mass.) 89; Gallagher v. Delargy, 57 Mo. 29; Rose v. Bates, 12 Mo. 30; Starrett v. Wynn, 17 Serg. & R. 130; 17 Am. Dec. 654; Buford v. Adair, 43 W. Va. 211; 64 Am. St. Rep. 854; 27 S. E. 260.
10 See cases cited in last note.
11 Rosenthal v. Mayhugh, 33 O. S. 155.