Same Case — On a Re-hearing.
Slidell, J.After a careful consideration of this case, we have come to the conclusion, that the judgment heretofore pronounced was erroneous. West and his wife, were in community when the contract with the plaintiff was made, and the land which the plaintiff was employed to cultivate was community property. Under these circumstances, to impose a liability upon Mrs. West, it was necessary for the plaintiff to establish that she had committed a fraud upon him, by falsely representing to him, or inducing him to believe, that the property was her paraphernal property, and by herself employing him accordingly.
The position in which Mrs. West placed herself towards the gardener who succeeded the plaintiff, gave a very strong coloring to the plaintiffs’ pretensions; hut its effect is greatly diminished by considering the separation of property .and the bankruptcy of West, which had intervened. Fraud should be clearly .established. There is here no direct proof of fraud, nor-of any representations made by th© wife to the plaintiff, either at the .date of his employment or during its continuance, which were calculated to mislead the plaintiff. The inferences drawn from her subsequent acts and dealings with others, upon which the plaintiff’s case rested, appear to us, after our renewed examination, to be insufficient to sustain the suit. Moreover, on recurring with more care to the petition, we find it militates against the inference of fraudulent representation, -which was attempted by the plaintiff to be drawn from the wife’s subsequent conduct. The plaintiff there alleges that he was employed by West and wife as a gardener, upon the place belonging to them. No suggestion of fraud is there made, no indebtedness in solido is alleged, nor is judgment prayed in ssolido.
The contract having been a community contract, the property on which the plaintiff labored community property, and the debt a community debt, the subsequent declaration of the wife to a third person, after the discharge of the plaintiff, that 'he should lose nothing and that she would pay him, was unavailing. If this c.o.uld he considered as a promise to the plaintiff, still it is not proved to have be.en authorized by the husband, and is moreover destitute of legal effect, under article 2412 of our Code, which declares that the wife, whether separated -in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him .before or during the marriage.
As to a subsequent acquisition of the land by Mrs. West, which is conjectural, and rests upon inference from her declarations made in conversation with a third person some months after the plaintiff’s discharge, the terms and manner *4of such acquisition, if made, -whether by judicial sale in [bankruptcy or how otherwise, and whether with or without a divestiture of plaintiff’s privilege, do not appear. It is evident no such acquisition was made before the plaintiff’s employment ceased.
The case of the plaintiff, a laboring man who had served faithfully and skillfully, is one of great hardship ; but however much it ought to commend itself to the conscience of the appellant, we are bound by the less liberal rules of law to reject his claim, as now presented. We do not wish, however, to be considered as withdrawing the opinion expressed at the former hearing, that where a married woman commits a fraud, she is liable, even out of her separate estate. This reversal is based upon a change in our opinion as to questions of fact.
It is therefore decreed that, the judgment appealed from be reversed ; and it is further decreed, that there be judgment, as in case of non-suit, in favor of the said Adelaide Duplessis, wife of John K. West, with costs in both courts.