Buckley v. WellsBuckley v. Wells
- Reporters:
- Before:
- Campbell, Denio Ch.
She is entitled to the profits of a mercantile business, conducted by the husband in her name, when the capital is furnished by her, and he has no interest but that of a mere agent.
The application of an indefinite portion of the income to the support of the husband, does not impair the title of the wife to her property.
No interest in her separate estate is acquired, either by the husband or his creditors, through his voluntary services as her managing agent.
THE appeal was from a decision of the Supreme Court in the third district, affirming a judgment directed by the referee, Mr. Gale.
The following are the findings:
First. Edwin Smith and Charlotte A. Smith are, and ever since 1835 have been, husband and wife.
Second. In 1849 Mrs. Smith received, as legatee under her mother‘s will, about $2,400, of which about $2,000 was her husband‘s note for that amount.
Third. Afterwards, Mr. Smith failed, and made a general assignment in trust for creditors, and in 1850 Mrs. Smith received, as a creditor of his, under said assignment, about $2,300, having been preferred in said assignment.
Fourth. Afterwards, in the fall of 1850, a mercantile business was commenced, nominally by Mrs. Smith, in the name of “E. Smith, agent,” at Schaghticoke Point, in Rensselaer county, where Mr. and Mrs. Smith resided, and such business was continued from that time until the seizure under execution hereinafter mentioned.
Fifth. The first purchases in said business were groceries, to the amount of about $1,000, and were cash purchases. The business was afterwards extended to include dry goods, etc., and subsequent purchases to those first made were generally upon credit.
Seventh. The arrangement between Mr. and Mrs. Smith, under which said business was conducted, was verbal, and made at the commencement thereof, and was, that Mr. Smith should take Mrs. Smith‘s money and do business with it for her as her agent, and that she should give him his board and clothing for his services.
Eighth. The business was conducted solely by Mr. Smith, in the name of “E. Smith, agent,” and nominally for his wife as principal; and her services were not employed therein.
Ninth. Mr. and Mrs. Smith had several children, and with their children were supported out of said business and its profits, taking goods and money from the store for that purpose as occasion required, and no account was kept between Mr. and Mrs. Smith, or, as appears, of such family expenses.
Tenth. About November 17, 1858, and while said business was being carried on as aforesaid, at Schaghticoke Point aforesaid, and there was a stock of goods employed therein, the defendant, William Wells, then being sheriff of Rensselaer county, seized upon said stock of goods under executions issued to him as such sheriff upon certain judgments against said Edwin Smith.
Eleventh. Afterwards, the most of said goods so levied upon were sold by said sheriff to satisfy said executions, and the residue left by him in a somewhat damaged condition.
Twelfth. The goods, thus taken and sold by said sheriff amounted in value, including the damage to those unsold, to five thousand dollars, as of the date of said seizure, as nearly as I can estimate the same.
Thirteenth. Afterwards, about January 24, 1860, Mrs. Smith, by an assignment in writing of that date, assigned to the plaintiffs herein her alleged cause of action, arising out of the facts aforesaid.
William A. Beach, for the appellants.
John A. Millard, for the respondent.
PORTER, J. The facts are stated with great perspicuity in the findings of the referee. The testator, as sheriff of the county of Rensselaer, levied on the goods of the wife, in virtue of executions against her husband. The property consisted of the stock in a country store, of which she was the sole proprietor. The husband conducted the business in her behalf, in the name of “E. Smith, agent,” and nominally, if not really, for her as his principal. The entire capital was contributed from her separate estate, except money borrowed in the name of “E. Smith, agent,” and the profits accruing from the use of such capital. The husband never owned any portion of the property, and never professed to own it. The style in which the business was conducted was notice to the public that he was acting as a mere agent, his wife being the principal in name, as upon these facts she was also in law. No question of fraud is raised by the findings. The whole family received their support from the business and its profits, taking goods from the store as occasion required. No account was kept between them. The law requires none to be kept, between parties in the relation either of debtor and creditor, or of husband and wife. The effect of the whole matter was, that she supported her husband; and though the law does not enjoin this on the wife as a duty, it does not prohibit it as a wrong. If the property had come from him, these would have been badges of fraud; but as it all came to her by inheritance, she was merely exercising over her own property, that dominion which it was the purpose of our statutes on this subject to secure. If she had conducted the business through a different agent, no one would have thought of questioning, either her title to the property, or her right to support her husband, without forfeiting her inheritance.
Whatever may have been the practical effect of these sta-
A different view very commonly prevailed at the time this cause was heard and decided, and it derived support from the tendency of some of the earlier decisions; but the question has since been disposed of in the case of Knapp v. Smith (27 N. Y., 277). It was there held, upon full consideration, that, under the
It is insisted, on the authority of a dictum in the case of Sherman v. Elder (24 N. Y., 383), that, where the wife permits her property to be blended for the purposes of trade, with merchandise belonging to her husband, it is liable to seizure for his debts. Without considering the question, whether the proposition can be maintained, without material qualification, it is sufficient to say that no such issue is presented here, as the wife was the sole proprietor of the entire stock of goods.
It is claimed that the transfer of the cause of action by Mrs. Smith vested no interest in the plaintiffs, either at law or in equity. This was not the ground on which the case was decided; but if the question was directly before us, we should have no hesitation in saying that the action was properly brought by the plaintiffs, as the real parties in interest. The
The judgment should be reversed, and a new trial ordered, with costs to abide the event.
CAMPBELL, J. One Edwin Smith failed as a merchant, and became insolvent. His wife, Charlotte A. Smith, was the owner of a separate estate, consisting of between two and three thousand dollars in money, which she received as legatee under the will of her mother. The parties were married in 1835, but the property was not received by the wife until 1849. They had a family of six children. An arrangement was entered into, by which a new mercantile business was to be commenced and carried on, with the wife‘s capital and on her credit, but in the name of “E. Smith, agent.” The business was to be that of the wife, and the husband‘s compensation was to be his board and clothing. Under this arrangement, the business was conducted for several years — the husband informing those he dealt with, and especially those of whom he asked credit, that he was acting as agent for his wife; and the wife and children were supported by the business, and from time to time took goods from the store as needed for their use and support, and without any account being kept of such goods. The entire capital, except such as may have arisen from profits and from money borrowed, was contributed by the wife, out of her separate estate. The wife took no part in the management of the store. The property was levied on and sold under executions issued on old judgments against the husband; and this action was brought by the assignees of the wife against the sheriff. The referee found, as a conclusion of law, that the plaintiffs were not enti-
The referee does not find that there was any fraud in the transaction. Indeed, it would be difficult to predicate fraud upon such an arrangement. The wife of an insolvent man, having a small separate property, derived from her mother, is naturally desirous that her husband may be engaged in some business, by which, in connection with her estate, a support may be provided for a large family of children. The husband has been a merchant. The wife is willing to embark her property in that business with which her husband was familiar, hazardous though it may be; and she empowers and authorizes him to carry on business for her and on her money and credit, holding himself out to the world as her agent. There was nothing fraudulent in that. There is no law in this State which mortgages to the creditor either the person or the labors of his debtor — no longer a law which consigns the innocent and unfortunate to confinement within prison walls. The duty rests upon him to use his best efforts for the payment of his debts; but there is a duty which he owes alike to the public and to his family which is sacred — and that duty is, to provide for the nurture, education and support of his children. He is said to be worse than an infidel, who neglects it. In seeking employment for that purpose, he may apply to the wife, if she have a separate estate, as well as to a stranger. If the law allows her to hold property — her own at her marriage, or coming from others beside her husband and free from his control — of necessity, she must be permitted to manage it herself, or she may employ others to act for her. As to that separate estate, she and her husband are as distinct before the law as if the marital relation did not exist. As to that property she acts as a feme sole, and may deal with her husband as with a stranger, and may, therefore, necessarily employ him and compensate him for its management. As the law was formerly, when the personal property of the wife became the property of the husband so soon as he reduced it to possession, it is easy to see how, when the wife voluntarily gave up the possession to him, such an act
I think this judgment should be reversed, and that there should be a new trial, with costs to abide the event.
All the judges concurred in the foregoing opinions, except DENIO, Ch. J., who dissented.
Judgment reversed, and new trial ordered.