Rose Nadel and A. G. Nadel, Her Husband, Appellants, v. Weber Brothers Shoe Company, a Corporation, Appellee, 70 Fla. 218

Ellis, J., (after stating the fads.) — -The theory on which the bills rest is that a married woman who' is jointly interested in" a mercantile business as a partner, with one who is sui juris may by using her credit based upon her separate property in purchasing goods for the business, render such separate property liable to be subjected in equity to the payment of a creditor’s claim. It is true that a married woman cannot be a member of a partnership, and is therefore not personally liable for any act or transaction of her so-called partner in the transaction of partnership business.

Virginia-Carolina Chemical Co. v. Fisher, 58 Fla. 377, 50 South. Rep. 504; Porter v. Taylor, 64 Fla. 100, 59 South. Rep. 400; DeGraum v. Jones, 23 Fla. 83, 6 South. Rep. 925. Yet under

Section 2 of

Article XI of the Constitution of Florida a married woman’s disability of coverture is removed to the extent that she may assume an obligation for the purchase price of real or personal property, and such obligation may be a charge in equity upon, and enforced out of her separate property. Micou v. McDonald, 55 Fla. 776, 46 South. Rep. 291; Halle v. Einstein, 34 Fla. 589, 16 South. Rep. 554.

Her so-called partner cannot by any act of his obligate her to the payment of partnership debts so that such debts may be a charge upon her separate property in equity, but she may by her own act, upon her sole credit, purchase goods for the business in which she is interested and her separate property may be subjected in equity to the payment of debts so contracted by her.

Although a married woman by reason of her disability of coverture cannot make a valid contract of copartnership, she may acquire an interest in a mercantile business, she may invest money or other property in such business, and such interest will be her separate property and subject to be charged in equity and sold under

Section 2 of

Article XI of the Constituion. In such case her associates in business, that is to say the persons with whom she has her property invested and who conduct the mercantile business are not necessary parties. Her- obligation to pay for the goods so purchased by her rests not upon the contract of partnership, nor because she is bound by any obligation growing out of the partnership relation, but being interested in the business in her 'own name, and having- property employed in such business, she purchases goods upon her sole credit for the purpose of such business.

In such case the goods are purchased by her, and for the purchase price thereof, her separate property may be charged in equity and sold. It is immaterial that the goods so purchased are commingled with the merchandise stock, or that she parts with them by gift or sale or destroys them so that her separate property is not in fact increased in value or benefitted by the purchase, her separate property may be charged in equity and sold because of the purchase by her of the goods and that she intended the payment thereof to be made out of her own property.

The married woman being given the right to acquire property, the constitution preserving- it free from the debts of her husband without her consent, makes it subject in equity to be charged for the payment of the price of any property purchased by her. Halle v. Einstein, supra; Halle v. Meinhard, 34 Fla. 607, 16 South. Rep. 559; First Nat. Bank of Pensacola v. Hirschkowitz, 46 Fla. 588, 35 South. Rep. 22.

In analogy to the system devised by equity .for charging- a married woman’s separate estate under circumstances in which a court of law would hold her personally bound if she were sole, the constitution has provided this substitute for the authority to contract. See Harwood v. Root, 20 Fla. 940; Micou v. McDonald, supra. We think that the right fo charge her property in equity for the price of any property purchased by her, depends upon the obligation being assumed by her solely upon her credit.

As she cannot make a valid contract of co-partnership and is not bound by the contracts made by her alleged partner in business she cannot accomplish that end through an agent whom she appoints to' represent her generally in the management of a business in which she is jointly interested with others.

We do not hold that she may not authorize her husband to act for her in the purchase of property upon her sole credit, to be used in a business in which she is interested, but such authorization must be made clearly to appear, and that it was her purpose to assume the obligation solely and not jointly as a partnership obligation. The original bill alleges that the goods were purchased by Mrs. Nadel for use and sale in the business, and that •the goods were sold to her in g-ood faith on her credit and her representations as to the ownership of the property both real and personal described in the bill.

The supplemental bill alleges that the goods were purchased by Mrs. Nadel “through her husband as manager and her agent in the mercantile business,” etc. .The latter allegation weakens the one contained in the original bill,. especially when considering- the invoice which is attached to the original bill as Exhibit “A” and made a part of it, showing that the goods were sold not to Mrs. Nadel on her sole credit, but were sold to “The Quality Shop,” the name of a business owned by C. L. Johnson and Mrs. Nadel jointly.

These allegations of the original and supplemental bills taken together, do not exclude the idea that as manager of the business, the husband of Mrs. Nadel acted as agent for C. L. Johnson as well as for Mrs. Nadel, and that in purchasing the goods and managing the business he was acting as the representative of the alleged co-partnership ; and that the obligation incurred for the purchase of goods for the business was intended to be a joint obligation of the alleged co-partnership and not the sole obligation of the married woman. See Barco v. Doyle, 50 Fla. 488, 39 South. Rep. 103; Dunham v.

Edwards, 50 Fla. 493, 38 South. Rep. 926. The demurrer to the original and supplemental bills should have been sustained; the order of the court overruling the demurrer is reversed. Shackleford, Cockrell and Whitfield, JJ., concur. Taylor, C. J., absent on account of illness.