36 Vt. 108 | Vt. | 1863
The proof of the existence of the partnership of the orators at the time when their account against Mrs. Adelia A, Howard, the wife of Ralph Howard, one of the defendants, accrued, rests upon the second deposition of Edson E. Plimpton, one of the orators. ' This deposition was filed in the clerk’s office on the 26th .of August, 1861, and, on the 16th of September following, the defendant Wardner, who is the only -defendant who appeared and answered in this cause, filed a motion to suppress the deposition for reasons assigned. It appears that on the 1st of October following, the solicitor for the orators gave a written notice to the defendant’s solicitor to proceed to a hearing on this motion before the final hearing on the •merits of the case, so that, in case of the suppression of the deposition, the orators anight have an opportunity to retake it before the final hearing. This motion was not pressed forward by the defendant until the final hearing at the December Term, 18-61. Three of the reasons assigned for the allowance-of this motion relate to merefiormal irregularities in th-e taking, -signing, and certifying of the deposition; and a deposition ought not to be suppressed for a failure to comply with the rules in a mere matter of form, unless such failure proceeds from bad faith, rather than from accident and mistake. The only ground upon
This-preliminary question being thus disposed of, the orators’ proof of the existence of their partnership during the time when their account against Mrs. Howard accrued becomes full and satisfactory; for it appears by this deposition that the orators’ firm or partnership was formed on the 1st of September, 1859, and was not changed after that time until this account had accrued. Although the first of the written articles of partnership provides that the partnership was to continue for three years from the 14th of January, 1860, yet those articles were made on
In the court of chancery the defendant Wardner alone appeared and made defence in this case, and the orator’s bill was taken as confessed by each of the other defendants. Since the suit, was removed to this court by appeal, the deaths of William B. Partridge, one of the orators, and of Nicanor Kendall and Mrs. Adelia A. Howard, two of the defendants, have been ■ duly suggested, and the suit is now prosecuted by the surviving orators against the surviving defendants.
The case presented by the orators’ bill as a ground for the relief prayed for depends entirely upon the facts which should be treated as established by the testimony. We have not been able to arrive at entire unanimity of opinion in respect to sonie of the facts which are controverted, but, in the judgment of a majority of the court, the results of the testimony establish, with reasonable distinctness and certainty, the following facts, viz: Mrs. Adelia A. Howard, the wife of the defendant Ralph Howard, commenced in the fall of 1856, to carry on the millinery business in the village of Windsor in her own name. Her husband appears to have advised her not to go into this business before she engaged in it, but, by his conduct, if not by hisu express declarations, he consentd that the business should be commenced, carried on, and managed in her name. He was engaged in the business and trade. of a tailor, and his declarations as well as hers show that it was the understanding between them that the millinery business should be carried on as a separate and distinct
The goods and other property in the millinery shop were on the 9th of February, 1860, and within a very few minutes previous to the attachment of the same on the writ of the orators against the defendant Ralph Howard as above stated, delivered by him into the possession of the defendant Wardner to be held as security for his indebtedness to said Wardner upon book account, notes, and otherwise. • This indebtedness appears to have commenced, and wholly to have accrued, after January, 1855, and no inconsiderable part of it accrued before Mrs. Howard commenced the millinery business. Its total amount on the 9th of February, 1860, was $436.09. The defendant Wardner can stand in no more favorable position against,the-claim of the
On equity principles, therefore, the stock and property in the millinery shop must be treated as the separate property of Mrs. Howard. It resulted from her credit and her earnings, under the sanction and permission of her husband, and should be held liable for -her debts, and subject to the demands affecting it. The facts which we regard as established by the testimony in the case are in-substance alleged in the orators’ bill as the ground of their' equity and right to relief. On these facts, the orators are to be regarded in equity as her creditors, and we think that they have a right to have her separate property applied in payment of their debts against her. Their right as, creditors to this application of the stock and property in the shop is not limited to the goods which they furnished, but extends to all of the goods in the shop which were acquired upon her credit and by her earnings, because the entire stock and property was her separate property, and she clearly- indicated an intention to charge the whole property with the payment of the debt due to the orators. We are
The decree of the chanceller, pro forma dismissing the orators’ bill, is reversed, and the cause is to be remanded to the court of chancery with directions to enter a decree in favor of the orators, providing for the application of the stock and property of the milinory shop, or of the proceeds of the same, as the separate property of Mrs. Howard, in satisfaction of the' orators’ debt against her, and for the taking of such accounts as may for this purpose become necessary, and allowing to the orators, as against the defendants Wardner and Ralph Howard, their costs in the court of chancery and in this court.