dom and recognizes her as having an individual legal entity. . . . In my opinion, there is nothing in morals, nothing in sound public policy or general law, and nothing in the laws of Alabama, which inhibited the making of the contract between the wife and the husband under which she earned her compensation now claimed. On the contrary, the laws of Alabama were intended to so emancipate the wife as to allow her the largest latitude in contracting for her services, rendered outside of her domestic relation of wife and housekeeper, and that the only restriction imposed upon her is that she shall not be entitled to any compensation for services ordinarily and naturally incumbent upon her in that beautiful relation which she assumed by her marriage vows." In connection with the foregoing case, and especially Re Hay (Fed.) supra, see the dictum in Switzer v. Kee (1893) 146 Ill. 577, 35 N. E. 160, to the effect that while a wife may, under the statute, be entitled to her separate earnings where she labors for another with the assent of her husband, she is not entitled to recover in her own right for services performed for him, in or about his business; which dictum was followed in Overbeck v. Ahlmeier (1903) 106 Ill. App. 606. And under statutes enabling a husband and wife to enter into any engagements or transactions with each other respecting property which either might enter into if unmarried, and also to alter their legal relations as to property by contract, without other consideration than the mutual consent of the parties, it has been held that a wife may lawfully contract with her husband to serve as clerk in his store for a specified weekly wage. Moore v. Crandall (1913) 124 C. C. A. 11, 205 Fed. 689 (construing Cal. Civ. Code, §§ 158 and 159). So, a statute enabling a married woman to acquire property, and to make any contract in the exercise or enjoyment of that right, to the same extent as an unmarried person, has been held to authorize a married woman to contract to recover for services rendered as cook and helper in her husband's restaurant. Nuding v. Urich (1895) 169 Pa. 289, 32 Atl. 409. And it has been held that a statutory provision to the effect that any married woman may perform any labor or services on her sole and separate account, and that the earnings therefrom shall be her sole and separate property, allows a married woman to contract with her husband for extra and unusual services to be rendered by her outside her duties arising from the marital relation, such as acting as assistant to him in his business as a detective. Re Cormick (1916) 100 Neb. 669, L.R.A. 1917D, 265, 160 N. W. 989 (construing and applying Neb. Rev. Stat. 1913, § 1562). But the latter rule has not been universally adhered to, it having been held that such a statute does not permit a wife to contract with her husband, even for her services outside of household duties, such as working for him in his business. This position has been assumed by the New York courts, which argue that services performed by a married woman for her husband are not rendered on "her sole and separate account," within the meaning of the statutes, although the same are rendered outside her household duties, and are such as he could not compel her to perform; and hold that the words "sole and separate account" do not mean simply an election on the part of the wife to work for her own benefit, regardless of whom the work is done for, and that such a contract is without consideration, since such services as she may render him, whether within or without the strict line of her duty, belong to him. Blaechinska v. Howard Mission & Home (1892) 130 N. Y. 497, 15 L.R.A. 215, 29 N. E. 755 (construing New York Laws 1860, chap. 90, as amended by Laws 1862, chap. 172, and holding that a wife could not validly contract to work for her husband in his custom tailor business); Re Renter (1887) 5 Dem. (N. Y.) 162 (holding the same with respect to work in the husband's business of cheese making). And see also Re Callister (1897) 153 N. Y. 294, 60 Am. St. Rep. 620, 47 N. E. 268. So, under laws granting all the rights in respect to property and the acquisition thereof, and the right "to make contracts in respect thereto with any person, including her husband," and to exercise all powers and enjoy all rights in respect to such property and to her contracts as if she were unmarried, it has been held that a wife cannot validly enter into a contract by which her husband agrees to pay her, for her services in his business, a definite sum per week. Re Kaufmann (1900) 104 Fed. 768 (construing New York Laws 1896, chap. 272, § 21). This was upon the theory that the statute gave a married woman power to contract with her husband respecting the acquisition of property, but not to create property out of the performance of a service that the law intended that the wife should render gratuitously, if at all. In this connection, the court said: "The statute obviously intends to enable the wife to contract with the husband respecting the acquisition of property, but does it enable the wife to acquire property by agreeing to render him a service outside of her domestic duty? If so, it would enable her to acquire property by contracting with him respecting her domestic service. There is a wide distinction between a power to acquire property by a contract with the husband, and a power to create property, which shall be her own, by an agreement that she shall be paid for services that the law intends that she shall render gratuitously, if at all. In other words, a contract with the husband for the acquisition of property does not include a contract to convert her personal service to her husband into property. question is not what the law should be, but what it is." And in Maine, under a statute (Rev. Stat. chap. 93, 846) which provides that a married woman "may receive the wages of her personal labor, not performed in her The own family, maintain an action therefor in her own name, and hold them in her own right against her husband or any other person," the husband has been held immune from an action at law to enforce a contractual claim of his wife for services as cook in his logging camp. Mott v. Mott (1911) 107 Me. 481, 78 Atl. 900. In a few jurisdictions statutes have been enacted which expressly provide that the wife shall not be entitled to recover any compensation for any labor performed or services rendered for the husband, whether in the management of property or otherwise; under which statutes it would seem that ordinarily a husband would not be liable for services rendered by his wife in connection with his business; and in fact it has been so held. Thus, under Illinois Stat. chap. 68, § 8, it has been said that such statute applies when the husband and wife contract in a private capacity, but does not apply where the wife acts for the court as receiver for her husband. Meissler v. Meissler (1902) 101 Ill. App. 256. And see Miller v. Smith (1907) 137 Ill. App. 467, as set out supra. So, in New Jersey, statutes enabling a married woman to bind herself by contract with any person in the same manner and to the same extent as if she were unmarried, except that husband and wife cannot contract with or sue each other except as heretofore, have been declared not to enable a married woman to recover for services rendered under a contract with her husband to act as saleswoman in his business house, either at law or in equity, even though such services were not within the line of those household services which the relation of wife to husband requires her to perform. Turner v. Davenport (1900) 61 N. J. Eq. 18, 47 Atl. 766, reversed on another point in (1901) 63 N. J. Eq. 288, 49 Atl. 463. But compare Re Hay (1874) Fed. Cas. No. 6,252, and Re Davidson (1916) 233 Fed. 462, as set out supra. Some question has also been made as to the right of a married woman to recover for services under a contract to serve a partnership or cor poration of which her husband is a member. In this connection it has been held that a married woman may contract with a firm of which her husband is a member, for her personal services, and that the firm cannot defeat her rights thereunder upon the ground that she cannot contract with her husband, provided, either by law or contract, the husband has no right to the wife's earnings. To this effect is Powers v. Fletcher (1882) 84 Ind. 154, where the wife contracted with a partnership of which the husband was a member, and he had released his claim to her services; Baker v. Jewell Tea Co. (1911) 152 Iowa, 72, 131 N. W. 674, where the wife contracted to work in the store of the defendant corporation through her husband, who was secretary and treasurer thereof; and Benson Morgan (1888) 50 Mich. 77, 14 N. W. 705, where the wife performed work and labor in a hotel run by a firm of which her husband was a member. And in New York, by virtue of the Enabling Act of 1860, which permitted married women to work and labor on their sole and separate account, and to retain the compensation received therefor, it has been held that a married woman may recover for services rendered in a business way under a contract with a partnership of which her husband is a member, against the members of the firm, including her husband, although the rule in New York is that she cannot contract with her husband for services to him, even though such V. services be outside ones, which she is not in duty bound to perform. Adams v. Curtis (1870) 4 Lans. (N. Y.) 164. So, in New Jersey, where by statute a married woman has full power to contract with any person except her husband, it has been held that a married woman can validly contract with a partnership of which her husband is a member, as saleswoman for the partnership. Turner v. Davenport (1901) 63 N. J. Eq. 288, 49 Atl. 463, reversing (1900) 61 N. J. Eq. 18, 47 Atl. 766, holding that such a contract is enforceable in equity. And that in Wisconsin a wife may legally contract with a partnership of which her husband is a member, to run a boarding house belonging to the firm for a "share" of the "profits," see Brickley v. Walker (1887) 68 Wis. 563, 32 N. W. 773. On the other hand, however, it has been held that a married woman cannot validly contract for services with a business partnership of which her husband is a member, where the statutes do not confer power upon her to contract with her husband, which, it was said, was not conferred in Massachusetts by a statute authorizing a married woman "to perform any labor or services on her sole and separate account," etc., as if she were sole. Edwards v. Stevens (1862) 3 Allen (Mass.) 315, holding that contract for compensation for services in trimming carriages, between a woman and a partnership of which her husband was a member, was unenforceable. G. J. C. UNION MARINE INSURANCE COMPANY, Limited, of Liverpool, The fact that a fire extinguisher carried on an automobile had been exhausted in extinguishing a fire in the car, and that the owner had been (— Ark., 239 S. W. 741.) unable to have it recharged prior to a second fire, which consumed the car, does not take the loss out of the operation of a provision in the insurance policy that insured will at all times carry an extinguisher on the car, and use due diligence to maintain it in full and complete working order; and the fact that the extinguisher might not have been effective if present is immaterial. [See note on this question beginning on page 27.] APPEAL by defendant from a judgment of the Circuit Court for Pulaski County (Fulk, J.) in favor of plaintiff in an action on a fire insurance policy covering an automobile. Reversed. The facts are stated in the opinion of the court. Messrs. McMillen & Scott for appellant. Mr. Charles A. Walls, for appellee: The instructions given by the court, as modified, were at least very favorable to the theory of defendants, and a question of fact was presented which was properly left to the jury. Arkansas Mut. F. Ins. Co. v. Stuckey, 85 Ark. 33, 106 S. W. 203; Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 So. 46. Mr. Melbourne M. Martin also for appellee. Smith, J., delivered the opinion of the court: This is a suit on a fire insurance policy covering an automobile and containing the following recital: "In consideration of the reduction in premium granted under this policy, it is made a condition thereof that the insured will at all times during the life of this policy carry on the automobile insured, in a readily accessible place, at least one fire extinguisher known as Pyrene, approved by the Underwriters' Laboratories of the National Board of Fire Underwriters, and bearing their label; and that the insured will use due diligence to maintain the said fire extinguisher in full and complete working order during the life of this policy." The owner of the car equipped it with an extinguisher, which he exhausted in extinguishing a fire in his car on or about December 21st. Later, on the 1st or the 4th of January, the car again caught fire, and on this occasion was destroyed. At that time there was no extinguisher in the car, which failure the own er explained by saying that he had tried to have the extinguisher recharged at his home (Lonoke), but there was no one there to do the work. Someone told him to bring or send the car to Little Rock and have the extinguisher recharged, but he had no way to bring or send it to Little Rock after his first fire. He also testified that the fire was of such a character that it could not have been extinguished even if he had had an extinguisher. An instruction was given which told the jury that, if the extinguisher had been provided and exhausted in extinguishing a fire, and if the owner had thereafter "exhausted every effort to have it refilled, and could not by said efforts have said extinguisher ready to use at the time of the fire," to find for the owner, although there was no extinguisher on the car when the fire occurred. Another instruction told the jury that, if "the fire which destroyed the car was beyond control of the party when it was discovered, and that the fire extinguisher could not have extinguished the flame had it been attached to the car at the time the fire was discovered, and that the fire could not have been put out and the car saved by the use of the extinguisher, had it been attached to the car," to find for the plaintiff, if the jury also found that every effort had been made to have the extinguisher refilled. There was a verdict and judgment for the plaintiff, and the insurance company has appealed. Insuranceautomobileprovision for fre extinguisher -inability to It is insisted that there was a substantial compliance with the provision of the policy set out above, requiring that a fire extinguisher be carried on the car, and that the instructions set out above properly subrecharge-effect. mitted to the jury the question of substantial compliance. We do not think so. In our opinion no case was made for the jury, and the verdict should have been directed in favor of the insurance company. It does not appear what use the owner had made of the car between the date of the first fire and that of the second. But he had completed the journey during which the first fire occurred. He had taken the car home, and an interval of from ten days to two weeks intervened after he had exhausted his extinguisher by use in extinguishing a fire before the second fire occurred. His use of the car after the first fire was purely voluntary and in violation of the requirement that it should be equipped with an extinguisher. In the case of Mechanics Ins. Co. v. Thompson, 57 Ark. 279, 21 S. W. 468, the policy sued on made the application for insurance a part thereof, and a warranty and the following question and answer appear in the application: "Will you agree as a condition of this insurance to keep in the same room, and within 10 feet of the gin stand, one barrel full of water and two buckets?" Answer: "Yes." Construing this question and answer, Judge Battle, for the court, there said: "The object of the second agreement or warranty is apparent. The barrel of water and two buckets were evidently required to be kept within 10 feet of the gin stand for the purpose of being promptly used in extinguishing any fire that might originate in or at the gin stand. The terms of the agreement necessarily imply that the water and buckets should have been at all times readily accessible. Its purpose could not have been subserved For the failure to keep this promissory warranty the judgment against the insurance company was reversed. At § 316 of the article on Fire Insurance in 26 C. J., p. 248, it is said: "In the absence of a stipulation in the policy, the fact that there was not a constant and ever-ready water supply and appliances for the extinguishment of fires will not relieve insurer from liability; and a stipulation to maintain such equipment during the life of the policy cannot be implied from the fact that it is described as a part of the property insured. But if it is provided that the premises shall be so equipped, a failure to comply with the provision will avoid the policy. Such provisions, if inserted in the policy or properly referred to therein, are generally regarded as promissory warranties. But a statement as to fire appliances not clearly made a warranty is a representation only, and is governed by the principles relating to representations generally." See cases cited in note to the text quoted, and see also 2 Clement, Fire Ins. p. 62; 3 Joyce, Fire Ins. § 1970; 1 May, Fire Ins. § 157; Southern Ins. Co. v. White, 58 Ark. 277, 24 S. W. 425. It having been agreed, in consideration of a reduced premium, that a fire extinguisher should be carried on the car, this agreement became a promissory warranty; and it was breached when a voluntary use of the car was made without that equipment. Nor is it important that the fire might not have been extinguished had the extinguisher been provided. There is no question in this case of the sufficiency of the extinguisher, as there was no extinguisher of any kind on the car when it burned. The insurance company had con |