119 Iowa 720 | Iowa | 1903
The nature of the controversy involved in this case, and the questions of law arising therein, will be better understood from a brief narrative of the facts as shown in the' evidence: H. A. Hoaglin had been engaged in business at Mt. Pleasant, and in January, 1900, sold out his business, receiving therefor a sum in cash entirely insufficient to pay the indebtedness contracted by him in conducting his business. Being without other property or resources, he proceeded to settle with his creditors, who were pressing for payment of their respective claims, by paying to each a portion of the indebtedness, taking receipts in full for the respective claims. It does not appear that these settlements were made on any uniform basis, or in pursuance of any agreement for composition with creditors. In some instances about one-third of the claims were paid, in other instances more. One of these creditors was tbe defendant firm, and through their attorney they accepted one-third of their claim, and receipted in full for the entire amount. Thereupon H. A. Hoaglin, with his wife, who had previously been conducting a millinery business in her own name in connection with the business carried on by H. A. Hoaglin, removed to Ottumwa, and, as it is contended, entered into a contract to carry on a partnership business under the name of H. A. Hoaglin. This alleged firm was without other assets than $250 of the wife’s money, and $500 borrowed by husband and wife on their joint note from the wife’s sister. With this sum of money in hand, H. A. Hoaglin, without disclosing the fact that he was acting as member of the . alleged firm, or that his acts were done otherwise than in his individual capacity, ordered through one Meades,
The case was presented to the jury in the lower court on the theory that if the evidence showed Hoaglin and wife to have been partners, and the money paid by Hoaglin to Meades to have been partnership funds, then the attempted application by defendants of the money received through Meades to the satisfaction of the individual debt of Hoaglin was improper, and plaintiffs, as partners, were entitled to recover the entire amount so paid; and counsel for appellants present the question whether husband and wife can be partners, contending that there was no lawful partnership, and that the money paid by Hoaglin was his own money, out of which defendants had a right to recoup themselves to the extent of Hoaglin’s previous indebtedess to them. We shall not stop to consider the question whether the acceptance by
pose. Collyer on Partnership (5th Am. Ed.) section 15; Parsons on Partnershp, section 19 Weisiger v. Wood, 36 S. C. 424 (15 S. E. Rep. 597); De Graun v. Jones, 23 Fla. 83 (6 South. Rep. 925). The pov/er of a married woman to enter into a contract of partnership, if it exists at all in any of the states in which the common law system prevails, must depend upon statutory authority; and in several cases the question has been considered as to whether particular statutory enlargements of the powers of married women as to contracting and managing their separate property have rendered them competent to enter into partnership relations. Thus it has been held that authority to acquire,, hold, and dispose of property as a separate estate will sustain a contract of partnership made by a married women with a person other than her husband. Abbott v. Jackson, 43 Ark. 212. And undoubtedly the general power to contract which is conferred upon married women, in some states would support a contract of partnership.. But on the question whether the statutes extending the powers of married women with reference to the making of contracts and the ownership and disposition of separate property confer the power to enter mto the relation of a. business partnership with the husband, the courts seem to. be somewhat at variance, not only on account of differences-in terms of the statutes in which the power is conferred, but-also on account of differences of opinion as to the bearing
The question of public policy involved in these statutory enlargements of the powers and liabilities of married women must be determined with reference to the general tenor of the st.atu.tory. provisions -on the subject as they
The only objection which occurs to us is that involved in the denial of the capacity of husband or wife to maintain a suit in a court of law or equity against the other, except as such power is expressly conferred, as decided in Heacock v. Heacock, 108 Iowa, 540, in which we have held that the relations of husband and wife to each other áre such as to preclude a suit by the one against the other for breach of contract or for tort, unless it be for the preservation or protection of the separate property; and it is
3. counternership. III. Defendants, then, have no claim on the money received by them from Hoaglin as partner, unless it is ■competent, in an action by the partnership to recover a partnership claim, for the debtor to set off a claim which he holds against an individual member of the partnership. It has -been held by this •court that, in an action by a member of a partnership for an indebtedness due to him individually, the debtor may ■set off a claim against the partnership. Allen v. Maddox, 40 Iowa, 124. But there is no case in this court in which it has been held conversely that a claim against a partner can be set off against an indebtedness due to the partnership. It is true that under some circumstances a partner may apply partnership money to the payment of his own debt. Dob v. Halsey, 16 Johns. 34 (8 Am. Dec. 293); Babcock, v. Standish 53 N. J. Err. & App. 376 (33 Atl. Rep. 385, 30 L. R. A. 604, 51 Am. St. Rep. 633). But certainly there is no rule -of law by which he can be compelled to do so. To determine what interest Hoaglin, as a partner, had in the money paid by him as partnership money to hhe defendants, would involve a settlement and winding-up of the partnership affairs. It certainly cannot be true that, whenever suit is'brought on a partnership claim, the debtor, on the ground that he has a claim against the individual member of the partnership, can bring the partnership into a court of equity to be wound up, and to have the interest of each partner in each item of its property determined.
As to defendants’ counterclaim, and also the defense-made uy reason of this alleged garnishment, it may be suggested that the only method provided by statute for reaching the individual interest of a partner in satisfaction of a debt due by him is pointed out by Code, sections 3904, -3977, 3978, which authorize the levy of an attachment or an execution by equitable proceedings to ascertain the nature and extent of such interest. There was in this-c ase no attachment or execution against Hoaglin individually, and therefore there was no opportunity for applying the provisions of these sections.
After considering all the questions raised in behalf of axipellant , we reach the conclusion that the judgment of the trial court should be abeirmed.