Hart v. Bowen

• Citation: 86 F. 877
• Decision Date: 19 April 1898
• Docket Number: 597.
• Parties: HART et al. v. BOWEN.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

86 F. 877

HART et al. v. BOWEN.

No. 597.

United States Court of Appeals, Fifth Circuit.

April 19, 1898

This action was instituted in the circuit court on the petition of Mrs. B. W. Bowen, wife of Reuben D. Bowen, and of said Reuben D. Bowen, each citizens of the state of Texas, and therein it was averred as follows: 'That the estate of E. J. Hart deceased, now being administered in the civil district court for the parish of Orleans under the number 45,308 of the docket thereof, and the Commercial firm of E. J. Hart & Co. and Mrs. Juliana Hart, widow of said deceased, Miss Mary T Hart, a feme sole of full age, Edmund J. Hart, Mrs. Julia H Hall, widow of Charles K. Hall, deceased, John B. Hart, W. H. Jewell, Mrs. Henrietta H. Gordon, wife of W. A. Gordon, the individual members of said firm, each and all of said defendants being citizens of the state of Louisiana, and domiciled in this city and parish, are each justly and truly indebted in solido unto petitioners in the full sum of eighteen thousand one hundred and thirty-five dollars ($18,135), with interest at the rate of six per cent. per annum, payable monthly, on ten thousand dollars from March 1, 1896, until paid, and on eight thousand one hundred and thirty-five dollars from April 1, 1896, until paid, being for $18,122.13, your petitioner Mrs. B. W. Bowen has on deposit with said firm of E. J. Hart & Co. and a balance of $12.87 to her credit on an open account with said firm. Petitioners aver that E. J. Hart, deceased, as aforesaid, was a member of said firm of E. J. Hart & Co., and a citizen of the state of Louisiana, up to the time of his death, and that said firm and the business thereof has since been carried on and conducted by the other defendants hereinbefore named; that for a number of years previous to the death of the said senior member of said firm, and to the present time, your petitioner Mrs. B. W. Bowen has kept a deposit account with the said firm upon the condition and with the agreement and stipulation that the said E. J. Hart & Co. should allow and pay her monthly interest at the rate of 6 per cent. per annum on the amounts to her credit both on her deposit and on her open account; that ever since July 27, 1895, the amount to the credit of your said petitioner Mrs. B. W. Bowen on her deposit account with said firm has been, and is now, $18,122.13, and that up to March 1, 1896, the said firm paid to her each and every month the interest due thereon as stipulated and agreed, and she was also paid by said firm the interest on eight thousand one hundred and twenty-two and 13/100 dollars ($8,122.13) of her deposit credit for the month of March, 1896, and up to April 1, 1896, but she has not been paid any interest whatsoever since April 1, 1896, although the same has been frequently demanded from said firm. Further, petitioners aver that your petitioner Mrs. B. W. Bowen has a right to withdraw the said deposit, and demand a settlement from said E. J. Hart & Co., at any time, and that the full amount of said $18,135 was due and payable to her by said E. J. Hart & Co. as soon as demanded from them, and she has made due and frequent demand upon said E. J. Hart & Co. for the same, but without avail, and the said E. J. Hart & Co. still refuses and neglects to pay to petitioner any part of the amount so due to her or even the interest thereon. Further, petitioners aver that the said indebtedness of said firm belongs to your petitioner Mrs. B. W. Bowen individually, and is her separate property. ' The petition closed with a suitable prayer for judgment. To this petition all the defendants appeared by counsel, and filed exceptions on the ground of vagueness and indefiniteness, and for the grounds assigned as follows: '(1) That, although it is alleged in the body of the petition that the debt claimed is due to Mrs. B. W. Bowen individually, the action is brought in the name of both R. D. Bowen and his wife, Mrs. B. W. Bowen, and the prayer is for judgment in favor of both said petitioners, and thus defendants are not advised who is the real plaintiff and in whose favor judgment is claimed. (2) That, although it appears on the face of the petition that Mrs. B. W. Bowen is a married woman, yet it is alleged that the said indebtedness is her separate property, and no fact whatever is alleged upon which this allegation is based, or which would take this claim out of the rule and presumption of law that all property acquired during marriage by either spouse belongs to the community of acquets and gains subsisting between husband and wife. (3) That in other respects the allegations of said petition are so vague and indefinite that defendants cannot safely answer thereunto. ' On the hearing of these exceptions the court ordered that they be 'maintained so as to require the plaintiffs to amend their petition so as to pray for judgment in the name of the wife, and thereupon the plaintiffs were allowed to amend their petition accordingly. ' No formal amendment appears to have been made, but thereafter the action proceeded the same as if the husband, Reuben D. Bowen had been eliminated as a party from the case. The executors of E. J. Hart, deceased, answered with a special defense to the effect that the claim sued on was not the separate property of Mrs. B. W. Bowen, the plaintiff, but was a claim belonging to the community of acquets and gains subsisting between said Mrs. Bowen had her husband, and asserting that Mrs. Bowen had no right or power to sue on said claim or stand in judgment thereon; and generally they answered, alleging as follows: 'That prior to the death of E. J. Hart, Sr., the firm of E. J. Hart & Co. existed and was composed of E. J. Hart, Sr., and E. J. Hart, Jr.; that at the death of E. J. Hart, Sr., which occurred on March 8, 1895, the said firm was dissolved, and the business thereof was continued by the surviving partner, E. J. Hart, Jr., as liquidating partner, and for purposes of liquidation only; and that the succession of E. J. Hart, Sr., was only bound for the debts of said firm existing at the date of his death, and for debts subsequently incurred for legitimate purposes of liquidation or inuring to the benefit of said firm in liquidation. That on March 8th, 1895, the death of E. J. Hart, Sr., the account of Mrs. B. W. Bowen showed that she was a creditor of said firm only in the sum of $5,153.74; that thereafter said account was continued on the books of the firm in liquidation, and numerous items of debit and credit were entered thereon, resulting in a final balance as shown by said books in favor of Mrs. B. W. Bowen of the sum claimed in the petition herein, viz. $18,135; that with regard to all said items (save one, which will hereafter be specially referred to) these respondents, while not undertaking to deny that they are charges, which may be binding on the succession of E. J. Hart, yet say that it is their official right and duty to require due proof of such liability before judgment shall be rendered against said succession therefor; that the excepted item above referred to is a credit of $10,000 entered on said account on the 27th of July, 1895, which said credit is claimed herein as a deposit, whereas no such deposit was made, but the same is a simple transfer to the account of Mrs. B. W. Bowen of an alleged credit standing on the books of the firm in liquidation in favor of her husband, R. D. Bowen, which transfer was made by order of her said husband; and respondents deny that said R. D. Bowen was entitled to any credit whatever, and aver that the credit in favor of Mrs. B. W. Bowen was without consideration, and was not binding on the succession of E. J. Hart. Respondents aver that from 1885 down to the death of E. J. Hart, R. D. Bowen had been an employee of E. J. Hart & Co.; that prior to January, 1890, he had been employed under an agreement to pay him commission on the goods sold by him, and that from and after January, 1890, he was employed at a fixed salary of $150 a month; and that the aforesaid remuneration for his services was duly and fully paid him; that from the 3d of October, 1895, the said R. D. Bowen kept a continuous running account with the firm of E. J. Hart & Co., and at the death of E. J. Hart, Sr., said account showed a balance due by said R. D. Bowen of about $12,000; that after said death, as respondents are informed, said R. D. Bowen made a claim upon the liquidating partner for additional remuneration for his services during the entire term thereof from 1885 down to July, 1895; that said claim was based on noncontract of the firm of E. J. Hart & Co., and on no legal obligation of said firm; that, nevertheless, the liquidating partner, E. J. Hart, Jr., for the reasons assigned in his separate answer herein, allowed said claim, and permitted a credit of the enormous sum of $19,228.43 to be entered on the books to the credit of R. D. Bowen, thereby making him appear on said books as a creditor of said firm, whereas he was and is a large debtor; that shortly thereafter the said R. D. Bowen, who remained in the employ of the liquidator, ordered the transfer of $10,000 from his account to the account of his wife, Mrs. B. W. Bowen, and the same forms a part of the amount claimed in this suit. Now, these respondents aver that the succession of E. J. Hart is in no manner bound by the aforesaid transactions, and that the said item is not due by said succession or by the firm of E. J. Hart & Co., in liquidation.

Several of the heirs of E. J. Hart, deceased, by the same counsel filed an answer specially denying that they had ever been members of the firm of E. J. Hart & Co., and adopting all the special defenses to the plaintiff's claim set up in the executors' answer. E. J. Hart, the surviving member of the firm of E. J....