Baldwin, J. delivered the opinion of the Court—Cope, J. concurring. This suit was brought by the plaintiff, a female, against Lorenzo and Juan Sunol, who are alleged to be partners. The suit is brought to recover a sum of money due the plaintiff as a servant, to the firm, under an implied contract, as on a quantum meruit. In the course of the trial, it was proposed to prove by a witness that the plaintiff was the wife of Juan Sunol, one of the defendants in the writ, though not served with process. The refusal to permit this proof is assigned for error. We think the assignment good.

The implication of indebtedness and of a contract to pay for the services of plaintiff, results from her being employed to render them. Anything which rebuts the idea of a contract, express or implied, is proper evidence, under the pleadings in such a case. If the plaintiff was the wife of one of the partners and living in the same house, though she might render domestic service for both, this implication would not arise.

Whatever claim her husband might have for such services—if he could make any—it is not very easy to see how the wife could make a claim against her husband and his brother on this score; for the law does not presume from the rendering of the wife’s services in such cases, that a contract has been made by her with her husband, either alone or when associated in business with another, to pay her for the services; and it is upon such a presumption that the plaintiff rests for a recovery here.

It was not necessary for the defendant to set this defense up in the answer, for the general denial of the contract authorizes the introduction of such proof as shows that no such contract was made. Por this error the judgment is reversed and cause remanded.