4 Keyes 361 | NY | 1868
"When actions had names, this would be known as an action of trover, brought to recover the contents of a cigar store, 2To. 78 Bowery, Mew York city. The plaintiff makes title to the property in virtue of her possession and apparent ownership. She is a married woman, and was carrying on business at that place in her own name. Her
This case is in point,' and disposes of much of the argument of the defendant’s counsel. The defendants, in this
The charge itself covered the whole case, and submitted the real issues in debate to the jury, and besides there is no proper or well taken exception to the charge. The case states at the end of the charge that the counsel for the defendant, as to the several points charged by the judge upon which requests had been submitted by him, excepted separately to such portions of said charge, so far as the same differed from the request made in that behalf. Where the charge contains several distinct propositions, and exception is taken to the charge generally, if either proposition be sound and correct, the exception will be unavailing. (1 Seld. 422; 3'id. 266 ; 4 id. 37, 67; 5 id. 171; 2 Kern. 313.) And so where the excep-. tion is to the whole charge and every part of it. (2 Seld. 233; 1 Kern. 416.) And so as to an exception to each and every part of the charge. (1 Kern. 416.)
The exception to the charge here, is still more objectionable. The defendant has submitted ten requests to charge, running over nearly three pages of the printed case, and the
The. position assumed by the defendant’s counsel is, that that money loaned became pledged to the business, and that the creditors had an equitable lien upon it. I know of no such principle of law, and certainly the wife is not under any such disability growing out of her marital relation, that she cannot receive pay from her husband of money honestly loaned him, where the same is done in good faith. (Babcock v. Eckler, 24 N. Y. 623.) The case of Gage v. Dauchy & Beekman (34 N. Y. 293) holds, that the fact of the husband giving his attention and services to managing his wife’s property, and assisting her in carrying on her business, does not deprive her of her legal rights in the property, or her first claim to the profits or funds of the business. This is all that is necessary to say in regard to the defendant’s requests to charge, and the judge’s refusal. There was no error committed in any of these refusals, and none committed upon the trial, and the judgment should be affirmed.
This is an appeal from the General Term of the Superior Court in the city of Hew York, affirming a
The jury found in favor of the plaintiff; the defendant appealed to the General Term, which affirmed the judgment, and defendant again appealed to this court.
Several objections were made upon the trial to the refusal of the judge to charge the jury. It is insisted, that the court erred in refusing to charge, that, if the jury find that the plaintiff loaned the money, in 1857 and 1858, to her husband to enable him to enlarge and extend his business, and he did so use it, he could not, after obtaining the credit from the judgment creditors, for which' the execution was issued, so transfer it as to relieve it from the claims of the creditors referred to.
It does not distinctly appear, that the money was loaned for the purpose of enlarging and extending the business of the plaintiff’s husband. It is true, that his business was increased after the money was loaned, and the money was used for that purpose; and, assuming that there is evidence in the case from which such an inference may be drawn that such was the object of the loan, does it follow that the husband could not, by transfer, secure the money thus loaned ? Loans of money are often made for this specific purpose, and persons are frequently started in business by moneys advanced to
It is also insisted, that the court erred in refusing to charge in accordance with the defendant’s request: That, when the wife places money in the hands of, and under the control of, the husband, and allows him to invest it in trade for his own benefit, the property, as between the wife and the creditors of the husband, becomes liable for his debts, and that she loses the benefit of the statutes, and the common law declares the creditor’s rights.
The difficulty in the proposition is, that it assumes that the wife places the property in the hands of the husband and allows him to invest it in trade, while this does not appear as a conceded fact in the case. She merely loaned it to him with no specified object in view; and, as the jury have found that this was done in good faith, I do not well see how such a loan can be considered as an improper diversion of the money, so as to render it liable for the debts of the husband. The request made was properly refused on the ground stated; but I am not prepared to hold that the wife cannot loan her individual money, even for the purpose of investing the same in trade, provided the loan be so restricted as not to connect her with the husband’s business. If she could loan it for one
So also the request to charge, to the effect that if the husband was the servant of the wife in and about the business, and received and retained the advantages and' accumulations of his labor, then the plaintiff could not recover, was properly refused. This with the additional requests made, as to the effect of purchases made by him, out of the proceeds of the business, and the accumulations made by their joint labors, and of allowing the husband to manage and control the property for his wife, and of devoting his time and labor to its accumulations, involve the question, how far the husband may be employed by the wife in the transaction of her business, when she has a separate estate, and is engaged in business on her own account. It has been repeatedly held) by this court, that there is nothing in the marital relation, which prevents the wife from employing her husband as her agent, in the management of her property and estate, and in the transaction of her business; and that such employment does not render her property, or the profits arising from her business, liable to the debts of her husband. (Sherman v. Elder, 24 N. Y. 381; Knapp v. Smith, 27 id. 277; Buckley v. Wells, 33 id. 518; Gage v. Dauchy, 34 id. 293; Merchant v. Bunnell, 3 Trans, ed. of Court of Appeals, p. 35.)
These cases show, that the wife’s separate éstate, and the profits derived from the same, although managed by the husband, as her agent, cannot be made liable for the payment of his debts. The principal question to be determined in such cases, is, whether the transaction between the husband and wife is fair and. honest, and is not a mere contrivance designed fraudulently for the purpose of protecting the husband’s property from his creditors. The judge, in his charge, fairly submitted to the jury to determine whether the plaintiff, in good faith, embarked in business with her own property, and charged, that, in determining the question, they had a
There can be no question as to the right of the wife to employ the husband as her agent, and if there is any difficulty, it is in regal’d to the requests made, which related to the appropriation of the profits arising from the labors and services of the husband, to the benefit of the wife, and thus increasing, by the employment of his time and talents, the value of her property. This precise point has been substantially decided by this court.
. In Buckley v. Wells, above cited, where the husband had acted as the agent of the wife, who furnished the capital, it was held that 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, and that no interest in her estate is acquired either by the husband or his creditors, through his voluntary services, as her managing agent. Campbell, J., fully answers the objection, that the skill and labor of the husband, when employed by the wife, enters into and forms a part of the property and increases its value, by remarking, “ If the business is successful, granted; but the title is not thereby divested. At most, he could have but a lien for wages.”
In Gage v. Dauchy (34 N. Y. 293), where the wife was the owner of a farm, on which she resided with her husband, and which he carried on in her name, without any agreement as to compensation, it was held, that neither the products of the farm, nor property taken in exchange therefor, could be attached by creditors, as the property of the husband.
The principles decided in the cases last referred to are fully indorsed and upheld by Davies, Ch. J., in Merchant v. Bunnell (supra). These cases effectually dispose of the question now discussed, and render it unnecessary to examine the
The objection taken, that the agreement by which the husband entered into the employment of the wife, on the terms stated by her, was a fraud upon creditors, cannot, I think, be maintained. It appears from the testimony, that he worked in her employment, sold and bought goods in connection with the wife and another person in her employ, and lived in the same building with his wife, and, he being insolvent, the wife provided for his support. The wife paid the workmen whom she employed to manufacture, and had every thing under her control.
There was nothing in the manner in which the husband was employed, I think, which made the arrangement fraudulent on its face, and, within the authorities before cited, it can be sustained, provided it was not a device to cheat and defraud the creditors of the husband. Whether such wáa the case was a question of fact to be determined by the jury intrusted with the decision of the case. (Knapp v. Smith, 27 N. Y. 280.)
It is said, that the transfer directly from the husband to the wife was void. It appears, that the money and property were paid and delivered in payment of a debt claimed to be due from the husband to the wife, and I see no reason why such a payment and delivery of money and property is not valid and effectual. The husband merely paid the debt which he owed, and, as the plaintiff had a sole and separate estate with which she was authorized to deal as a feme sole, there is no good reason why she should-not deal with her husband the same as with a stranger, and no occasion to require the intervention of a third party in the payment of her demand.
The defendant took the property wrongfully from the plaintiff, and no demand was necessary before .the action was brought.
There was no error committed upon the trial, and the judgment must be affirmed.
Judgment affirmed.