Sec 88

The wife's power to bind her husband for necessaries ceases, also, when they are living in voluntary separation, she receiving from him an allowance for her support.8 Notice to tradesmen that the husband will not be bound by the wife's contracts is not necessary to protect him from such tradesmen; though where particular tradesmen have been accustomed to furnish the wife with the husband's assent, the implied authority to the wife may continue, unless notice of its repudiation be given.6 It has been intimated that in such suits the burden is on the husband to discharge himself by showing the provision made by him for the wife is adequate.1 But the more reasonable view is, that the mere fact of separation is sufficient to put persons dealing with her on inquiry how far her authority to bind her husband continues.2 If, on the whole case, however, it appears that the wife's allowance is insufficient, the husband will be bound for whatever supplies may be required for her actual support.3

But liability ceases when wife leaves without cause.

And also when wife separates with allowance.

1 Mainwaring v. Leslie, 2 C. & P. 507; Hindley v. Westmeath, 6 B. A C. 200 ; Blades v. Free, 9 B. & C. 167 ; Hardie v. Grant, 8 C. & P. 512 ; Thome v. Kathan, 51 Vt. 520; Hunter v. Boucher, 3 Pick. 289 ; McCutchen v. McGahay, 11 Johns. 281; Cunningham v. Irwin, 7 S. & R. 247 ; Walker v. Simpson, 7 W. & S. 83; Bevier v. Galloway, 71 111. 517; Schnuckle v. Bierman, 89 111. 454 ; Brown v. Patton, 3 Humph. 135 ; Williams v. Prince, 3 Strobh. L. 490. But see Rumney v. Keyes, 7 N. H. 571.

2 R. v. Flinton, 1 B. & Ad. 227; Cooper v. Lloyd, 6 C. B. N. S. 519.

3 Needham v. Bremner, L. R. 1 C. P. 583.

4 Govier v. Hancock, 6 T. R. 603.

5 Hodgkins v. Fletcher, 4 Camp. 70; Johnston v. Sumner, 3 H. & N. 261; Richardson v. Dubois, L. R. 5 Q. B. 51.

6 See Mizen v. Pick, 3 M. & W. 481 ; Cunningham v. Irwin, 7 S. & R. 247 ; and see supra, sec 84.

Sec 89

The contract of a married woman, when by law invalid by reason of her coverture, cannot be validated by estoppel, so far as to make her bound by a contract by which she would not otherwise be bound. Thus a married woman's sale of real estate, otherwise invalid, will not be validated by encouragement given by her to the vendee to enter on the estate and make on it valuable and expensive improvements.4 Nor is such estoppel worked by the additional fact that the married woman held herself out to be unmarried.5 But if a married woman induces a purchaser to buy an estate to which she has an adverse title, she being cognizant at the time of such title but fraudulently concealing it, she will be estopped from afterwards setting up her title against him.6 The condition of fraud is on principle important in all jurisdictions in which a married woman is not contractually liable; and adopting this distinction, Mr. Bigelow1 states the law to be that "parties under disability, as infants and married women, are not estopped unless their conduct has been intentional and fraudulent."2 And he goes on to say that "in cases of fraud unmixed with contract, whether by concealment or active conduct, the current of authority declares (in opposition to the doctrine in Massachusetts) that a married woman may estop herself to deny the truth of her representation."3 - Whether a married woman Married women may be estopped and may enforce executed contract.

1 Frost v. Willis, 13 Vt. 202. But see Mainwaring v. Leslie, M. & M. 18; 2 C. & P. 507; Edwards v. Towels, 5 M. & G. 624.

2 .Johnston v. Sumner, 3 H. & N. 261; Biffen v. Bignell, 7 H. & N. 877 ; Mott v. Comstock, 8 Wend. 544 ; Caney p. Patton, 2 Ash. 140 ; Jacobs v. Feath-erston, 6 W. & S. 346 ; see Hultz v. Gibbs, 66 Penn. St. 360.

3 Hodgkinson v. Fletcher, 4 Camp. 75 ; Emmett v. Norton, 8 C. & P. 506; Lookwood v. Thomas, 12 Johns. 248.

4 Bispham's Eq. 2d ed. sec 293, citing Drury v. Foster, 2 Wal. 24 ; Rangeley v. Spring, 21 Me. 130: Concord Bank v. Bellis, 10 Cush. 276; Bemis v. Call, 10 Allen, 512; Merriam v. Boston R. R., 117 Mass. 241: Glidden v. Strupler, 52.

Penn. St. 400; Williams v. Baker, 71 Penn. St. 476 ; Miles p. Lingerman, 24 Ind. 385 ; Kane Co. v. Herringtou, 50 111. 232; Morrison v. Wilson, 13 Cal. 494.

5 Liverpool Ass. v. Fairhurst, 9 Ex. 422.

6 Bispham's Eq. 2d ed. sec 293, citing McCullongh v. Wilson, 21 Penn. St. 436; Couch v. Sutton, 1 Grant's Cas. 114; Brinkerhoff v. Brinkerhoff, 8 C. E. Green, 477, 483; Carpenter v. Carpenter, 10 C. E. Green, 194; Connolly v. Braustler, 3 Bush, 702; Drake v. Glover, 30 Ala. 382. See Klein v. Caldwell, 91 Penn. St. 140. As to estoppel by infants see supra, sec 74. As to whether estoppel can operate on future acquired property, see supra, sec 78.

1 Estoppel, 3d ed. 510.

2 He cites Kane Co. v. Herringtoh, 50 111. 232; Schnell v. Chicago, 38 111. 382; Davidson v. Young, 38 111. 148; Rogers v. Higgins, 48 111. 211 ; Schwartz v. Saunders, 46 111. 18; Miles v. Lin-german, 24 Ind. 385 ; McCoon v. Smith, 3 Hill, 147 ; Schenck p. Stumpf, 6 Mo. Ap. 381.

3 To this, in addition to the cases already noted, are cited, among other cases : Reed v. Hall, 57 N. H. 482 ; Patterson v. Lawrence, 90 111. 174 ; Anderson v. Armstead, 69 111. 452 ; Meiley v. Butler, 26 Oh. St. 535 ; Dukes v. Spang-ler, 35 Oh. St. 119 ; Rusk v. Fenton, 14 Bush, 490 ; Davis v. Zimmerman, 40 Mich. 24 ; Levy v. Gray, 56 Miss. 318.

It may be in view of this modified capacity of binding herself by estoppel that a married woman has been held entitled, though on questionable reasoning, after part payment of the purchase money of land bought by her, to enforce performance of the contract. Neef v. Redmon, S. C. Mo. 1881. The court said : " This is a case of the first impression in this court, and there is a lamentable dearth of authority on the question involved. 'As a general rule a married woman cannot, except in special cases, contract as a feme sole, nor as such sue or be sued.' Cord on Married Women, sec 532. 'Any form of contract which she may make is as to her a nullity.' 1 Bishop on Married pels operate wherever there is capacity to contract.1 This is the rule in England,2 and has been extended to cases of contract in several adjudications in this country.3 And even though the capacity to be bound by an estoppel in pais is not conferred by an enabling act, it may be asserted that, if the capacity to be bound directly is given, that to be bound indirectly follows.4

Women, sec 39. But it by no means follows that one cannot bind himself by a contract with her. She cannot bind herself personally by any contract she may make. It is not like most contracts of an infant, voidable only, but while it remains wholly unexecuted on her part is absolutely void. Not binding her, it cannot be enforced against the party contracting with her. The element of reciprocity or mutuality is absent. A contract executed by her in whole or in part, and remaining executory on the part of the person contracting with her, occupies a different footing. If she has executed her part of the contract, he cannot say there is no consideration for his agreement. ' If she has done all on her part required by the contract, it will be enforced against the other party;' and it makes no difference that she could not have been compelled to perform the agreement. 2 Bishop on Married Women, sec 250. ' But if the agreement rests merely in mutual promises, then, in principle, as the promise of the married woman is a nullity, it cannot constitute a consideration for the promise of the other party, and, therefore, it is void as to him.' Ibid. Conceding that he might rescind the contract by tendering to her what he had received, in part performance of the contract on her part, shall he retain what he has thus received, and is estopped by her covenant of warranty, or by recitals, is a question as to which there is much conflict of opinion. The preponderating view is that she cannot be so estopped in jurisdictions where she has no business capacity;1 though this is not without strong dissent and occasional departures from the rule even in states where it is nominally recognized.2 Under recent statutes conferring capacity on married women, estop refuse to perform his contract, on an offer by her to complete the performance on her part ?

"It is not the case of a mere payment of money on a verbal contract and an attempt to enforce specific performance, because there has been a part performance of the contract. Here is a contract in writing, signed by the party to be charged, and while the contract as to the other party is a nullity, as long as it is entirely executory on her part, and, therefore, not binding on him, it ceases to be a nullity as to him when she has executed her agreement either in whole or in part. If after having received a part of what she was to give, he may still rescind the contract, because he cannot compel the performance of the balance of her contract, equity will not let him do so without returning or offering to return what he may have received from her in part performance; but will regard the contract as possessing sufficient vitality, as against him, to enable her to get what she bargained for unless he will place her in statu quo by returning what he has received from her. The principle which exonerates her from personal liability on any contract she may make, is a shield for the protection of herself and husband, and is not to be used as a weapon for their destruction.

"In Chamberlain v. Robertson, 31 Iowa, 410, somewhat similar to the case at bar, there was a purchase by a married woman of a tract of land and part payment of the purchase-money. The defendant refused to convey to her on the ground that she was a married woman, and as the contract could not have been enforced against her, neither could it be enforced against him. In delivering the opinion of the court, Beck, J., observed: ' Admitting that the contract, if it had not been performed or partly performed by plaintiff, could not have been enforced against her, it does not follow that defendant for that reason would be relieved from its obligation.' " But notwithstanding the conclusion thus stated, we must hold that if the contract was void as to the one party, it was void as to the other. Supra, sec 2.

1 Bank of America v. Banks, 101 U. S. 240; Lowell v. Daniels, 2 Gray, 161, overruling Fowler v. Shearer, 7 Mass. 21; Merriam v. R. R., 117 Mass. 241 ; Jackson v. Vanderheyden, 17 Johns. 167 ; Sparrow v. Kingman, 1 Const. 242; Wallace v. Miner, 6 Ohio, 364; Straun v. Straun, 50 111. 33 ; Patterson v. Lawrence, 90 111. 174, 612 ; Barker v. Circle, 60 Mo. 258; Gonzales v. Hukil, 49 Ala. 260; and cases cited Big. on Est. 3d ed. 277.

2 Dukes v. Spangler, 35 Oh. St. 119 ; Hill v. West, 8 Ohio, 222; Massie v. Sebastian, 4 Bibb, 433 ; Strong v. Wad-dell, 56 Ala. 471; King v. Rea, 56 Ind. 1. As to parallel cases of estoppel by infants, see supra, sec 74.