DE GRAUM, AYMAR & COMPANY, APPELLANTS,

v.

B. JONES ET AL., APPELLEES; JOHN G. BRENNER, SON & COMPANY, APPELLANTS, VS. B. JONES ET AL., APPELLEES

The Chief-Justice delivered the opinion of the court:

The facts in these cases are identical. The bill alleges that the complainants were merchants in the city of Philadelphia; That the defendants, B. Jones, Lewis Willis and Mrs. E. G-. Chipley, who was a married woman, were jointly engaged as merchants in business in Pensacola, and held themselves out as copartners.

That the goods sold to Jones, Willis & Co., were of the value of $2,338.76, which is unpaid. That complainants sold said goods on the sole credit of the persons composing the firm of Jones, Willis & Go., and for the purpose of enabling them to replenish their stock and carry on their business. That defendant S. P. Chipley is the husband of Mrs. E. G. Chipley, and that she engaged in business as aforesaid and obtained credit from orators and others with his knowledge and consent.

That the interest of Mrs. Chipley in said business is her separate statutory property, and that neither she nor either of the other defendants have any property other than that employed in said business of Jones, "Willis & Co., which is subject to levy or forced judicial sale.

The bill prays that the property of the firm of Jones, Willis & Co. may be charged with the payment of this indebtedness and that it may be sold for that purpose.

The record presents for determination the question as to whether or not a married woman can-make a contract of partnership. The doctrine seems well established that a married woman has no contractual capacity and cannot bind herself personally.

To establish a partnership between two or more persons the parties must be capable of contracting to regulate the terms of their joint enterprise, to-wit: the amount of capital stock to be furnished and the services to be performed by each partner; the business in which said partners are to engage, and the length of time it is to last. These are all obligations of a purely personal character. When one of the parties is without the legal capacity to assume these obligations, as a married woman is, there can be no legally existing partnership between them. She has no separate legal existence, her husband and she being in contemplation of law but one person. Smith on Contracts, 317 and 318 ; Story’s Equity Jurisprudence, vol. 2, sec. 1367. To make an agreement of partnership requires a contracting capacity which is not possessed by a married woman.

The relief sought against the defendants by the bill is based on the theory that a partnership existed between the other defendants and Mrs. Chipley. Mrs. Chipley being legally incapable of forming such a partnership, it would follow that no liabilities could attach to her by reason of any act done by Jones and Willis acting for the supposed copartnership. Under the decision of this court in Blumer et ux. vs. Poliak & Co., 18 Fla., 707, if Mrs. Chipley had carried on business in her own name, having property employed in said business and purchased goods on her own •credit for the purpose of such business,- her separate property might be subjected in equity to the payment of claims for purchase money for such goods. But we do not understand such to be the object of this bill. It seeks to subject the goods indiscriminately, uot only the property of Mrs. Chipley, but the property of Jones and Willis, on the theory that a partnership existed between them of Jones and Willis and Mrs. Chipley. Counsel for appellants, while he makes a very ingenious argument in support of his position, admits that he has been unable to find any authority for the position.

We do not go quite to the extent of saying that “ that which is without precedent is without safety,” but we fully concur in the remark of Lord Ellenborough in Chamberlain vs. Wilson, 2 M. & S., 415 : “ It is believed this action is without precedent. This of itself, though not perhaps conclusive, is certainly very strong argument that the action is not maintainable.”

• Judgment affirmed.

Upon petition of appellants a re-hearing was granted, upon which the Chief-Justice delivered the opinion of the court:

A re-hearing in this case was granted and upon a re-argument. thereof the counsel for the appellant insisted that the bill did not allege th.e existence of a partnership between Mrs. Chipley and Jones and Willis, the other defendants. That he never contended that a married woman could be a partner, because she could not be so without entering into a contractual relation with the other defendants, which she was incapable of doing. That recognizing such to be the law the appellants filed their bill for relief on the ground that the property sought to be bound was joint property, of which the defendants were tenants in common. The allegations in the bill in respect of the relations existing between Mrs. Chipley and Jones and Willis are that “ they were jointly engaged in business as merchants in the city of Pensacola, Fla., and held themselves out as copartners under the style of Jones, Willis & Co.” That “ defendants, constituting the said firm of Jones, Willis & Co.,” were indebted * * * ” “ that after the said defendants who compose the said copartnership, or association of Jones, Willis & Co., had become indebted -If -jv »

We are of the opinion that it does not matter by what terms the relations betwen Mrs. Chipley and Jones and Willis may be characterized, the legal result is the same. To be “jointly engaged as merchants ” would require the same contractual capacity on the part of the persons so engaged as the relation of copartners. The business of merchants is to buy and sell and shai’e the profits, or to divide the losses. An allegation that persons are jointly engaged as such is virtually alleging that they are engaged as co-partners.

Judgment affirmed.