dissenting:
I concur entirely in the view announced in the opinion of the court that the earnings of a married woman are property within the terms of the act of June 3, 1887, and belong to herself and not to her husband. But I cannot see any room for the application of this law to the present case. Whatever may be the rule as between husband and wife themselves, or as between the wife and other parties when she is following a distinct employment which is notice to all persons dealing with her that she is making earnings of her own, the presumption, when she and her husband are working together in the same employment, is violent, that the joint earnings go into the common stock, and that a contract with the husband includes the joint services of both. Under such circumstances nothing short of an express contract can give the wife a separate action. This is especially so in the present case where the service rendered was of a kind incidental to the contract with the husband, and differed from the ordinary course of such contracts only in degree. Personal attendance, cleaning up his room, and administering medicine when sick, are parts of household work *342commonly performed by the woman of the house or her servants, and are presumably included in the price of board paid to the head of the house, in this case the husband. If the boarder is unusually troublesome and the stipulated board is not compensatory, the remedy, as in any other case of a bad bargain, is to make a new one, not to go on for three years and then when the other is dead put in a claim for separate services. As to the item of washing, the presumption that it was or was not to be included in the board, depends on the custom of the time and place among people similarly situated, but whatever the presumption may ordinarily be in this respect, the fact that in the present case the service was rendered for more than three years without any intimation that the wife was to present a separate claim for it, was conclusive against such claim. Under such circumstances nothing short of an express contract could sustain it and that there was certainly no offer to prove, even if the evidence does not affirmatively concede its absence. The right of a married woman to her labor, as against her husband, is not questioned, but her right to sue for services contracted for by her husband, and rendered by her in the care of a boarder under her husband’s contract, and without notice to the boarder, is not sustainable.
Though not entirely for the reasons advanced by him, the result reached by the learned auditor was right.
Mr. Justice Williams concurs in this dissent.