23 W. Va. 236 | W. Va. | 1883
J. JST. Camden & Co. filed their bill in Uovember, 1881, against Jacob Hiteshew and Sarah, his wife, alleging that in the year 1879 the defendant, Sarah Hiteshew, traded and dealt with the plaintiffs and bought goods of them, and paid in part for said goods by delivering to them stave and barrel
It is alleged in the bill, that she is the owner of two tracts of land, which came from her husband, through a conveyance by him toL. N. Tavenner and by Tavenner to her, one tract described as one hundred and ninety-six acres, and the other fifty acres. The bill does not set out any personal property owned by said Sarah Hiteshew7.
A demurrer to the bill wras properly overruled.
The defendants separately answered the bill. Jacob in his answer denied that he ever did business as the agent of his wife, averring that he wms ignorant and could not read writing; that he never signed his name as agent for his wdfe to any contract or notes and did not sign his name as agent for his wife to. the note set up in the bill; and averred that he did not know7 it was so signed.
Sarah Hiteshew7 in her answer expressly denies, that she carried on business through Jacob Hiteshew7 as her agent. She also denies that she furnished Camden & Co. any staves
On the 18th day oí December, 1882, the court entered the following decree: “This cause came on this day to be heard upon the bill and exhibits filed therewith, the answers of defendants and exhibits filed with answer of Jacob Iliteshew', and replication to said answers, and proofs filed, and Avas argued by counsel. On consideration whereof the court is of opinion, that the plaintiffs are not entitled to the relief prayed for. It is therefore adjudged, ordered and decreed, that the plaintiffs’ bill be dismissed, and that the defendants recover against the plaintiffs their costs in this suit expended.”
From this decree plaintiffs appealed.
Is the decree light ? This depends upon a question of fact. If the note sued on is the note of Sarah Iiiteshcvq her separate estate is liable for the payment thereof out of the rents and profits of her real estate, it not appearing in the record that she has any personal property. The debts of a married Avoman, for which her separate estate is liable, are such as arise out of any transaction, out of AA'hich a debt Avould have arisen, if she had been a feme sole, except that her separate estate is not bound by a bond or covenant based on no consideration, such bond or covenant being void at larr, and she is not estopped in a court of equity from showb-ill g that it aa'RS based on no consideration. Radford v. Carwile., 13 W. Va. 572.
This Court Avere unanimous in the case of Miller v. Peck, 18 W. Va. 75, in holding, that a married Avoman having personal property, which she is-alloAvod to hold by statute as her separate property, may barter and trade Avith reference thereto through her husband as her agent, and that she will be entitled to the increase thereof, though living with her husband. Judge Green differed Avith the majority of the Court on other points decided in that case, but not on this. If therefore, as charged in the bill, Sarah Ilitshew was carrying on business through her husband as her agent, and
The answer of Jacob Hiteshew exhibits several accounts roudered to him during the time oí the dealings with Camden & Co., which were made out against him individually. The depositions of Jacob ITiteshew and Sarah Hiteshew are taken, in which they severally testily, that Jacob did no business for her as her agent, and that she had no dealings with Camden & Co.
W. N. Chancellor, a member of the firm oí Camden & Co., in his dej>osition says : “The note filed in this suit of three hundred and tweihy-five dollars and fifty-eight cents, dated March 15, 1881, at sixty days, payable to the order of Camden & Co. and signed by Jacob ITiteshew, agent for Sarah Hiteshew, is due to the plaintiffs with interest from May 17, 1881. I have examined exhibit “A” filed with Jacob ITiteshew’s answer and dated November. 1, 1872. It is in the handwriting of J. N. Camden and was between my firm and Jacob Ilitoshew, and all matters in that contract have been settled up. The note now sued on has no connection whatever with said contract of 1872. I have examined exhibit “33” filed with Jacob ITiteshcw’s answer, which is in my handwriting and was drawn up by me in the presence of Jacob Hiteshew on December 27, 1877. It is an exact copy or duplicate of a paper retained by me and executed at the same time, with the exception that the paper we retained bears date as stated December 27, 1877, and the paper handed to him has the name of “Camden & Co.” written" across its face by me, as now appears on said exhibit “33.” The paper retained is in the possession of my firm and ready to be produced, if desired. The contract was made with Jacob Hiteshew, agent tor Sarah Hiteshew. The way that this contract was made was as follows : Mr. Jacob Hite-shew came to us to make a contract for staves. We agreed upon the number of staves, the price, and how they should be paid for; he said that he expected to get these staves out at or near where he lived on Stilwell, a portion of which he had already out, and that he expected to keep some goods there for sale to facilitate this business of getting out staves.
Witness said the ledger was opened “Jacob Hiteshew, agent.” Being shown the accounts filed with Jacob Hite-sliew’s answer, and asked to state on what account the goods therein mentioned wore sold, and on whose credit, said: “They went to the account'of Jacob Hiteshew, agent, on our ledger and on the credit of Jacob Hiteshew, agent for Sarah Hiteshew, under the contract of December, 1877, with the exception of the account of J. P. Wait, which I know nothing about.” Witness further said: “ It was understood that all goods purchased under this contract should be charged to Jacob Hiteshew as agent under that contract, as there was no other account opened, or would be opened,
In answer to the question, “ state what those items of account and bills are?” he said : “ They are memorandums given to Mr. IIiteshew, made by the clerks selling the goods, showing the amount of the goods and the cost of same, so that they could be marked to sell again, but not made out, as a general statement would have been made by the general book-keeper, who kept the accounts.” Witness further said: “When the contract of 1872 was made Jacob Hite-shew was considered solvent, hence the contract was made with him; when making the contract of 1877, Mr. Iliteshew represented, and it was known to me by general rumor, that he could not do business in his own name, having been unfortunate in business and having transferred his property to his wife.”
On cross-examination, in answer to the question, “did you ever talk to her, (Mrs. Iliteshew) about the contract at anytime?” witness said, “not to my recollection.”
Thomas Ilawhs the bookkeeper of plaintiff’s testified: “I filled out the note sued on and others of the fourteen,‘Jacob Iliteshew agent of Sarah IIiteshew’ in that manner, because I know that this was the arrangement, between IIiteshew and the firm, the first note having been drawn in this form, and the contract signed in this manner, in making the note sued on. I am sure that the signature was read to him as written. I have heard read the statement in Jacob Iliteshew’s answer, in regard to the making of the note sued on, and do not see how it is possible he should have signed this and other notes in the same form, when they wore carefully explained to him; his statement in regard to' these notes not being explained to him is very incorrect. I wont out to Mrs. Iliteshew’s home one time some distance from Parkersburg, and saw Mrs. IIiteshew in reference to one of the notes. I told her that this note in question had been lying over in bank for some weeks, and that we were anxious to get it in shape again by renewing it. She answered that Mr. Iliteshew was in town that day. I then asked her as Mr. IIiteshew was in the habit of signing these notes for her, if she would sign this one as I might miss seeing Mr. Iliteshew
On cross-examination, ho said the time when he went to Mrs. Iliteshew’s, “was before the note sued on was given.” It was evidently one of the notes of which the note in suit was a renewal.
A. B. Chancellor testified: “I went with said Hawks at his request for companionship and in order to show him the way. The statement of Mr. Hawks is entirely correct to the best of my belief as to the conversation there occurring with Mrs. IIiteshew. I cannot state the words used hut I do remember distinctly that Hawks said to her, Sarah IiitoshewT, that he had come out for the purpose of getting arranged indebtedness lying in the First National bank, by way of a note or notes executed in her name which note had been overdue some little time. lie asked her to sign the note herself, hut she said that she had rather not as he was in the habit of attending to that business himself. She said he was in town that day and I think she said he ivas in town for the purpose of attending to that business.”
0. 6r. Schofield testified, that he was deputy collector of internal revenue for the First district. He said: “In the license year ending April 30, 1878 and 1879, I granted license to Sarah IIiteshew from November 1,1877, as a dealer in manufactured tobacco, having her postoffice at Murphy’s Mills, and in the following year from May 1, 1878, to April 30, 1879, she paid the special tax for that year and took a special tax-receipt, in her own name both times. This special tax-receipt is sometimes spoken of as a government license. It covered dealers in manufactured tobacco. I cannot say as to the year 1878, whether she was there or not in person,
P. 0. Barrett testified: “ I know where Mrs. Sarah Ilite-shew had a store in Wood county in the past three or four years, at a place on the Horthwestern turnpike, about thirteen miles from Parkersburg, and about four miles from Murphy’s Mills, at aplace called Hog Town. Her postoffice is Murphy’s Mills, Wood county, and was during that time. I had been and am postmaster at Murphy’s Mills myself. I have been at the store, that is I have passed it,. but do not think I was ever in the store during the time she was carrying on business there. I saw Jacob Hiteshew there; in the community out there the general undersanding and report was that the business wasbeiug done in her name at that store. Heither Jacob Hiteshew or his wife ever said anything to me about it, but the general talk and representation was as I have stated above.”
A. (?. Leonard testified that Hiteshew bought goods of the firm of J. P. Vaughn & Co. When he did not pay for them he gave his note as agent. It was understood that he was agent for his wife. The notes that were hot paid have been acknowledged by Mrs. Hiteshew as her paper. They were signed by Jacob Hiteshew as agent. “Jacob Hiteshew told me he was agent for his wife. In a suit brought by J. P. Vaughn & Co. in chancery in the circuit court of this county on a note for fifty-seven dollars and six cents against Jacob Hiteshew and wife, which note I now hold in my hand and is signed ‘Jacob Js|k Hiteshew, agent.’ In that suit the original note is filed, which closed the account. I cannot file the note with my deposition, because it is filed in that suit; the indebtedness covered by this note was given on the credit of Mrs. Hiteshew, not regarding Mr. Hiteshew entitled to financial credit except so far as he could bind his wife by his signature as,agent. My firm dealt in tin and hardware. I understood from Mr. Hiteshew that he had a little store up there and that these goods were for that store. He did not
On cross-examination in answer to the question: “Are you positive that in a conversation that you had with him on the 3d day of May, 1881, that he stated that he was doing-business for his wife and acting as agent for her?” he said: “Yes, sir; I know that he stated that he signed this note as agent for his wife or I would not have taken it.”
Jas. W. Dils in his deposition in answer to the question “state whether you ever had a conversation with Jacob Hiteshew about a purchase of goods in Pittsburg to be sold at the store on Stilwell creek in Wood county, and if so what was said on that occasion?” said, “Yes, sir, I did have a conversation with Jacob Hiteshew about buying said bill of goods. Jacob Hiteshew told me that his wife, Sarah Hite-shew, had been to Pittsburg and bought a small stock or goods in her own name, and was going to take them to Stil-well, and that the business would be done by her, that is in her own name.”
In opposition to this evidence there is nothing but the unsupported depositions of Jacob and Sarah Hiteshew, in which they deny everything contained in the depositions which refer to the matter of Hiteshew’s agency for his wife. Sarah Hiteshew denies that she had been engaged in any business, denies that Jacob Hiteshew washer agent, or doing business as such, denies that she had any store in • Stilwell. She admits that she went to Pittsburg and bought goods to put in the store but says Mr. Hiteshew gave her the money to do it; that the store was not hers. She does not pretend to explain why she paid to Schofield the special tobacco-tax;
It is a fact admitted in the case, that in 1876, Hiteshew conveyed his real property to L. N. Tavernier, and Tavon-ner at ouce conveyed it to Mrs. Hiteshew. This furnishes a powerful reason for Mrs. Hiteshew coming to the front and transacting business through her husband as agent. She having the property could obtain the credit necessary to carry on the business; he having no property could not expect credit. From the attitude the defendants now assume towards the plaintiffs holding this just claim against Mrs. IIiteshew.it would seem, that the arrangement was a double one, viz: If Ilitesliew was sued for his debts, he could show by evidence, that he owned nothing, everything being in his wife’s name, and all the buisness transacted • by him was in her name by him as agent; if she were sued, as in this case, deny the agency, deny everything, and rely upon a failure of evidence to escape. Such a course of double dealing cannot receive the approbation of a court of equity. Fortunately there is abundance of evidence as we have shown in this cause to prove the allegations and charges of the bill.
Reversed. RemaNded.