all cases where she has the capacity to contract." Subsequently the law enlarged the capacity of the wife to contract. R. L. § 2321; No. 140, Acts 1884, and No. 84, Acts 1888. When the cause of this action arose, the statute on this subject read: "A married woman may make contracts with any person other than her husband, and bind herself and her separate property in the same manner as if she was unmarried, and may sue and be sued as to all such contracts made by her, either before or after coverture, without her husband being joined in the action as plaintiff or defendant, and execution may issue against her, and be levied on her sole and separate goods, chattels, and estate. But this section shall be subject to the limitation that nothing herein contained shall authorize a married woman to become surety for her husband's debts, except by way of mortgage duly executed, as now provided by law." This provision of the statute has been before this court, and received construction in Reed v. Newcomb, 59 Vt. 630, 10 Atl. Rep. 593. It is there said: "This law removes the incapacity of a married woman to contract, and permits her to make contracts in the same manner and to the same extent as a feme sole, excepting with her husband, and enforces them. The power thus given to her to contract with other persons than her husband is unrestricted, and she may, jointly with her husband or other person, make contracts in all cases where she has legal capacity under that act to contract. No reason of public policy now prevents, under this act, the maintaining an action against the husband and wife upon their joint promise, whether made before or during coverture." In the same case (Reed v. Newcomb, 64 Vt. 49, 23 Atl. Rep. 589) it is held that the husband and wife may be jointly liable and held on debts contracted by the husband, in a business carried on by him as her agent, which he holds out to the world as her business, with her knowledge, consent, and approval. These decisions are of recent date, and establish that under the present law, as well as heretofore, the husband may be the agent of the wife, and bind her in any business transaction in which she could personally bind herself, and that he may become jointly bound with her in any such transaction. It only remains to consider whether in such a joint transaction, carried on by them as partners, she becomes bound to third parties negotiating with the partnership. It is contended that, inasmuch as the statute does not remove the wife's incapacity to contract with her husband, therefore she cannot enter into legal partnership with him, inasmuch as the partnership implies a contract between the several partners, both as to the right of each to represent and bind all in all partnership transactions, and also with respect to the several partners' interest, right, and liability in the partnership, as between themselves. It may be conceded, and

doubtless it is true, that a legal partnership necessarily involves contractual relations between the several partners. If the contention were with reference to enforcing such relations between the husband and wife as partners, it is quite plain that the statute has not removed the incapacity of the wife to enter into them with her husband, and at law they could not be enforced. But the question presented is not the enforcement of the partnership contract between the husband and wife. This is not a suit to which the husband is one party and the wife the adverse party, to settle their respective rights in the partnership business which they carried on under the firm name of H. W. Bishop & Co. The wife was fully capacitated to use her property in running a hotel, and to contract with the plaintiff for supplies for that purpose. Her contract with the plaintiff for such supplies would bind her as though unmarried. Nor, as we have seen under the decisions mentioned, would her contract with the plaintiff for such purpose become invalid, nor unenforceable, because her husband became jointly liable with her for its performance, nor because he acted as her agent in making the purchases of the plaintiff, as, to some extent, it is found that he did. When acting as her agent, he represented her, and acted by virtue of the power conferred upon her by the statute in giving her capacity to act and bind herself. Neither does conducting business by a husband and wife as partners, in regard to third persons, involve her becoming surety for her husband, which, under the statute, can be accomplished only in the manner specified. With respect to such third persons, as well as with respect to the partnership business, each partner is principal. Each and all the partners are interested in the business. If one partner pays the whole of a partnership debt, or if he pays more of such debts than his just proportion, he is entitled to a credit therefor in closing the partnership business, but not because he has paid anything as surety for his copartners. He has only paid what he has legally bound himself to pay as principal. Hence, in holding that a married woman may, in conducting a partnership business with her husband, bind herself to third parties, and that the obligation may be enforced against her when sued with him as a partner, it is not necessary to enforce any part of the partnership contract between the partners, nor any contract, or part of a contract which the statute has left her incapable of entering into. Any other holding would allow a married woman by conducting a partnership business in which her husband was a secret or open partner frequently to receive all the benefits to be derived therefrom, and escape all the liabilities. If the suit was to settle the partnership business between the defendants, and to adjust their rights and liabilities therein, other and different questions would arise, which we have not considered.

But as to the plaintiff, and his rights, the defendants, though husband and wife, and although sued as partners, are no more than joint debtors; nor will the enforcement of the judgment against them as partners be anything more or other than the enforcement of a joint judgment, founded on the joint contract and liability of the defendants. Wherever this question has arisen in regard to the rights and liabilities of married women, the decisions, so far as they have come to our attention, have been in accord with the views we have expressed. Krouskop v. Shontz, 51 Wis. 204, 8 N. W. Rep. 241; Scofield v. Jones, 85 Ga. 816, 11 S. E. Rep. 1032; Parker v. Kane, 4 Allen, 346; Basford V. Pearsons, 7 Allen, 506; Burr v. Swan, 118 Mass. 588; Major v. Holmes, 124 Mass. 108; Goodnow v. Hill, 125 Mass. 587; Reiman v. Hamilton, 111 Mass. 245; Noel v. Kinney, 106 N. Y. 74, 12 N. E. Rep. 351. The two cases last named are especially to the point. Conceding that a married woman may bind herself to third parties in conducting a business as a partner with her husband, we do not think that any of the exceptions taken by the defendants to the admission of testimony before the auditor can be sustained. It was proper to admit her sayings to establish that she was the "Co.," or partner of her husband, included in H. W. Bishop & Co.; also to admit what her husband said on the subject which was carried to her knowledge; also how the plaintiff and other persons dealing with H. W. Bishop & Co. understood it to her knowledge, and what action they took to her knowledge, founded upon that understanding. She conceded that the livery business run in connection with the hotel was carried on in the name of herself and son, and that she was interested in that business. It was admissible to show that that business was so intermingled with the hotel business that they could not be separated, as tending to show that she was interested in the hotel business, which she denied. Judgment affirmed.

(78 Md. 108)

COX et al. v. HANDY et al. (Court of Appeals of Maryland. Oct. 11, 1893.)

On rehearing. Denied. For former report, see 27 Atl. Rep. 227.

BRYAN, J. A motion for a reargument has been filed in behalf of Julia J. Handy. She is the only child of Charles Handy, a son of the testator, who died in the lifetime of his father. The motion is made on the supposition that we decided that she was not entitled to participate in the division of that portion of her grandfather's estate which was left to his widow for life. In the bill of complaint filed in this case it is alleged that she and certain other descendants of the testator are the only persons entitled to an interest in this property. It was not de

nied in the pleadings or in the argument that she was entitled to an interest in the property, but in one of the answers it was maintained that the representatives of Jesse Handy, a son of the testator, who survived him, and who died in the lifetime of the widow, were also entitled to a share, and this was the controversy in the case. We decided this controversy, but had no occasion to consider the rights of Julia J. Handy, as they were not drawn in question. Some of the expressions in the opinion would militate against her claims, if they were. separated from the context, and considered without reference to the subject-matter to which they were applied; but they were intended to be understood as applying to the interest of Jesse Handy, which was the sole subject of discussion. In the investigation of the question we cited certain general rules of construction, which are frequently of great use in ascertaining the meaning of a testator when it is doubtful, but are never to be applied so as to defeat his intention when it is clear. The property at the death of the widow was to be divided among the testator's children; "the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled." A share of the property vested in each of the children who were living at the time of his death, and, if any child died before the period of distribution, leaving children, they were substituted in his place. His share, however, was not divested if he left no children, but it went to his representatives. Jesse Handy was in this latter category. Julia Handy's father died before the testator, and he, therefore, had no interest in the property. But, nevertheless, the testator's intention was clear that she should take a child's part. The child of any deceased child was, by the terms of the will, to take the portion to which the parent would have been entitled if living at the time when the division was appointed to take place. It made no difference whether the death occurred in the lifetime of the testator, or after his decease; the mere fact that the parent was dead at the time of the expiration of the widow's life estate was sufficient to complete his child's title. If the deceased parent survived the testator, the child took by substitution in his place; but, if he died in the lifetime of the testator, the child's title was by direct and original gift.

We see no necessity for a reargument, and shall therefore overrule the motion. Motion overruled as unnecessary.

indivisible, so that but one action would lie for breach thereof by discharge of the employe.

2. The employe having been discharged, and his wages paid him up to the time of his discharge, his only right of action would be for damages for breach of the contract, and he could not maintain an action for wages as such, on the ground that he was ready and willing to perform the services.

3. Where the emplove sued on the breach of contract for part of the damages which he was entitled to, and obtained judgment therefor, any further suit thereon is barred.

Appeal from Baltimore city court.

Action by Charles B. Olmstead against Henry Bach, Jr., and others, for breach of contract of employment. A demurrer to the replication was sustained, and plaintiff appeals. Affirmed.

Argued before ALVEY, C. J., and ROBINSON, BRYAN, IRVING, McSHERRY, FOWLER, PAGE, and ROBERTS, JJ.

Charles Marshall and Wm. L. Hodge, for appellant. Thos. M. Lanahan and Frank Gosnell, for appellees.

The

MCSHERRY, J. The declaration in this case alleges that the plaintiff and defendants entered into a written contract under seal, whereby the latter agreed to pay to the former a salary of $50 per week, payable weekly, as compensation for the services of the plaintiff as cutter in the business of the defendants, and that the plaintiff agreed, in consideration of said salary, to devote his time and attention to the business of the defendants, as is usual in conducting a merchant tailoring business. The agreement further provided that the contract should continue in full force for one year from February 1, 1892, to February 1, 1893. declaration also avers that the plaintiff entered into the service of the defendants under the above contract, and performed his duty thereunder until April 5, 1892, when the defendants refused to permit him to perform his part of said contract, or to pay him the salary to which he was entitled thereunder, after April 9, 1892. It further alleges that the plaintiff has always been ready and willing to perform his part of the contract, and to render the services which he agreed thereby to perform, and has always held himself in readiness and offered to perform said services according to said contract, but that the defendants have refused to permit him to perform the contract on his part, and have refused, and still do refuse, to pay him the salary of $50 a week, as therein provided, since April 9, 1892. It concludes with a claim by the plaintiff "that there is due and unpaid to him of the amount payable to him under said contract the sum of two hundred and fifty dollars, being the amount of said weekly salary stipulated to be paid by said contract to the 25th of May, 1892."

Among the defenses relied on the defendants pleaded that on April 5, 1892, they dismissed the plaintiff from their service, and at the same time paid him all wages or

salary due to him under the contract down to April 9th, the end of the week terminating four days after his dismissal; that nine days after said dismissal the plaintiff brought suit against the defendants before a justice of the peace upon the identical contract and cause of action sued on in the case at bar, and that thereafter the plaintiff recovered judgment in that suit for the sum of $50 and costs, which judgment was fully paid and satisfied by the defendants before the pending action was brought. To this plea the plaintiff replied that after the pretended dismissal of him by the defendants he, notwithstanding the dismissal, presented and offered himself to the defendants as ready and willing to perform his part of the contract set forth in the declaration, and did in fact continuously so offer to perform the same, and that the suit mentioned in said plea was a suit for his salary for one week under said contract. This replication was demurred to. The Baltimore city court sustained the demurrer, and entered judgment thereon for the defendants. The plaintiff thereupon took this appeal from that judg ment.

It is apparent from this outline of the pleadings that the wages or salary now sought to be recovered, as well as those sued for before the magistrate, were not wages or salary which had been actually earned, but were wages or salary for work and labor that the plaintiff was ready and willing, but had not been allowed, to perform. That the contract declared on was broken by the defendants when they dismissed the plaintiff is conceded, or, at least, is not denied, by the pleadings. For that breach the plaintiff was clearly entitled to recover. But to what extent, and how often? The answer to these inquiries involves at the very outset an examination of the scope of the agree ment set forth in the declaration, as to whether it is an entire or divisible one; because, if it be entire and indivisible, and there has been but a single breach, but one action can be brought therefor. The contract is one of hiring. Under it the plaintiff was employed as a cutter at $50 per week, payable weekly, and it was expressly provided that this employment and this weekly payment of wages should continue for one year. The duration of the employment was as much an integral part of the agreement as the stipulation relating to the amount of the compensation and the stated periods for its payment. It was not a hiring by the week, payable weekly, because it was explicitly declared that it should continue for a year. It was not 52 separate, independent contracts, but one indivisible agree ment, covering the period of a year, and making provision for the weekly payment of wages. The consideration for the plaintiff's undertaking was the defendants' agreement to pay him $50 a week and to employ him as a cutter for one year. The latter

was as much a part of the consideration promised him for entering the service of the defendants as the former, for it would be wholly unreasonable to assume, as any other construction must, that it was the intention of the parties that the hiring should be for a week, determinable by notice, or else merely a hiring at will, as it undoubtedly would have been had there been no stipulation as to its duration. Iron Co. v. Carpenter, 67 Md. 554, 11 Atl. Rep. 176. The good sense and reasonableness of the particular case must always guide and govern courts in determining whether a contract is divisible or entire. Dugan v. Anderson, 36 Md. 585; Jones v. Dunn, 3 Watts & S. 109; Robinson v. Green, 3 Metc. (Mass) 159. Whether a contract must be sued on as an entirety or is divisible and can become the foundation of separate suits for the infraction of independent stipulations depends on its terms; and, in order to arrive at a correct construction, due regard must be had to the intention of the contracting parties as revealed by the language which they have employed, and the subject-matter to which it has reference. Broumel v. Rayner, 68 Md. 47, 11 Atl. Rep. 833; Brewster V. Frazier, 32 Md. 308; Brantly, Cont. 216. Obviously the appellant expected and contracted for continuous employment for a year, and not for a weekly or still more precarious hiring at will, and the appellees contemplated securing a permanent cutter in their tailoring business. Certainty in the duration of the employment, as well as exemption from the annoyance incident to frequent changes in such an employ, were manifestly within the contemplation of both of the parties to the contract when it was entered into, and with these considerations before them it seems to us clear that the appellant never supposed himself only hired by the week or at will, and equally clear that the appellees never understood that their employe was at liberty to terminate the engagement upon a week's notice. The hiring was for a year and the wages were payable in weekly installments of $50 each. The subsidiary provision as to the payment of the wages each week does not split up the contract into as many agreements as there were payments or periods named for payments to be made, (Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. Rep. 12;) nor is it inconsistent with a yearly hiring, (Norton v. Cowell, 65 Md. 362, 4 Atl. Rep. 408; Fawcett v. Cash, 5 Barn. & Adol. 908;) for, as said by Lord Kenyon in King V. Birdbrooke, 4 Term R. 245: "Whether the wages be to be paid by the week or the year can make no alteration in the duration of the service if the contract were for a year." The contract is, then, an entire, and not a divisible, one. It does not consist of distinct and independent subjects which admit of being separately executed and closed. A dismissal during the year was consequently

503

a breach of the contract as an entirety, and furnished the party not in default with a good cause of action. The contract being entire, and having created the relation of master and servant, and the latter having been, as averred in the pleadings, dismissed before the expiration of the term for which he had been engaged, what redress was open to him? Obviously but one remedy for the recovery of the whole damage sustained by him. In Keedy v. Long, 71 Md. 389, 18 Atl. Rep. 704, this court said: "A servant wrongfully discharged has only two remedies open to him at law, either of which he may pursue immediately on his discharge. First, he may treat the contract as continuing, and bring a special action against the master for breaking it by discharging him, and this remedy he may pursue whether his wages are paid up to the time of his discharge or not; or, secondly, if his wages are not paid up to the time of his discharge, he may treat the contract of hiring as rescinded, and sue his master on a quantum meruit for the services he has actually rendered. These two alternative remedies are the only ones open to him. Mayne, Dam. 159. Upon a quantum meruit he can only recover for the services actually rendered. Archard v. Hornor, 3 Car. & P. 349; Smith v. Hayward, 7 Adol. & E. 544. In an action for damages for a breach of the contract he will be entitled to recover the actual damages he has sustained, in addition to the wages earned; and in case he has by diligence been unable to secure other employment during the entire term, he can recover the entire wages, less the amount he has actually earned during the interim, or the amount he might have earned by the exercise of proper diligence in seeking for employment in the same or similar business. Wood, Mast. & S. 249; Mayne, Dam. 158; Elderton v. Emmens, 6 C. B. 160; Goodman v. Pocock, 15 Q. B. 576." Jaffray v. King, 34 Md. 217. In the case at bar the pleadings show that all wages earned by the appellant had been paid to him in full up to the end of the week during which he was dismissed. When he brought suit before the justice of the peace he had carned no wages which had not been paid him, for he had rendered no services after his dismissal. was, therefore, at that time in no position to sue upon a quantum meruit for the value of services actually performed, and he could only recover in that suit damages for a breach of the entire contract, unless the contract was divisible into 52 independent agreements, each capable of being separately executed and closed. His wages having been paid in full up to the time of his dismissal, he had no option as to the remedies which he might pursue. He was confined to an action for the recovery of damages which he had sustained by a breach of the contract, because successive actions, instituted for the recovery of fractions of the

He