Baird v. Baird

• Decision Date: 07 June 1951
• Docket Number: No. 9023,9023
• Citation: 125 Mont. 122,232 P.2d 348
• Parties: BAIRD v. BAIRD.
• Court: Montana Supreme Court

Page 348

232 P.2d 348

125 Mont. 122

BAIRD v. BAIRD.

No. 9023.

Supreme Court of Montana.

June 7, 1951.

Rehearing Denied June 21, 1951.

Dalton T. Pierson, Smith, Boone & Rimel and Russell E. Smith, all of Missoula, argued the case orally for appellant.

Jewell & Root, Shallenberger & Paddock, and William F. Shallenberger, all of Missoula, argued the case orally for respondent.

ADAIR, Chief Justice.

Suit in equity seeking restitution for advancements made by one spouse to the other.

Mrs. Emma Ryberg, 41, an unattached widow, boarded a passenger coach at Yakima, Washington, at about 4:00 o'clock on the morning of December 10, 1947, enroute to her home at Bismarck, North Dakota. She first seated herself beside a man occupying a seat immediately behind one wherein sat Harold Baird, 37, single, who was enroute from Seattle to his home in Missoula. After a while the passenger with whom Mrs. Ryberg was sitting went out of the coach whereupon Mrs. Ryberg struck up a conversation with Baird, moved into his seat and visited with him until he arrived at his destination. At Missoula, Baird left the train. Mrs. Ryberg continued on to Bismarck.

At Christmas Baird sent Mrs. Ryberg a Christmas card.

On January 3, 1948, Mrs. Ryberg called Baird by long distance telephone and informed him that she was returning to the west coast via Missoula.

On January 16, Mrs. Ryberg arrived in Missoula where she remained for three or four days, staying at a hotel, attending shows with Baird and meeting and visiting with his mother and other relatives.

Baird, a veteran of World War II, with the aid of a G. I. loan, had built a small four-room home at 118 Beverly street in Missoula, doing all the carpenter work and labor thereon himself and there he and his mother were residing at the time of Mrs. Ryberg's January visit. Following such visit Mrs. Ryberg proceeded to the states of Washington, Oregon and California where she visited relatives during which time she frequently called and talked with Baird over the long distance telephone.

In February 1948, Mrs. Ryberg returned to Missoula for a second visit at which time she proposed that Baird go with her to Salem, Oregon, for a Chevrolet automobile which she had left with certain of her relatives stating she did not care to have them longer use the machine. On February 21st the two went for the car and on the following day Baird, accompanied by Mrs. Ryberg, drove it from Salem to Missoula where it was left by Mrs. Ryberg who returned to her home in Bismarck by train to settle the estate of her recently deceased husband. From there Mrs. Ryberg called Baird by long distance telephone on an average of once a week.

In May 1948, during one of such telephone conversations, Mrs. Ryberg learned that Baird had planned a fishing trip for May 23rd, the opening day of the fishing season. Both Mrs. Ryberg and Baird were ardent anglers and when Mrs. Ryberg expressed a desire to accompany him on the fishing trip Baird consented. On May 22nd, Mrs. Ryberg arrived from Bismarck by airplane bringing with her a watch purchased in North Dakota which she presented to Baird as a gift. On May 25th, Mrs. Ryberg returned to her home in Bismarck where she remained but a couple of weeks when she came to Missoula again, moving into Baird's home at 118 Beverly street where, for the ensuing three months she resided and made her home with Baird and his mother.

On June 10, 1948, Mrs. Ryberg opened a personal savings account in the First National Bank of Missoula in the name of 'Emma Ryberg Baird' depositing therein checks totalling $11,000. Also on the same date and in the same bank she opened an individual checking account in the name of 'Emma Ryberg Baird' wherein she transferred $3,000 from her aforesaid savings account. At the time of opening the accounts, Mrs. Ryberg told the officers at the bank that she had come to Missoula to get married and for that reason she desired her accounts placed and carried in the above form.

On September 21, 1948, being over three months later, Mrs. Ryberg and Baird obtained a marriage license at Superior, Montana and that day were there married by a justice of the peace.

At and for a long time prior to the marriage Mrs. Ryberg knew that Baird's home at 118 Beverly street stood in his name; that it was encumbered by a mortgage which he had executed to secure a G. I. loan of $5,500; that Baird was employed by the United States Postal Department at Missoula; that his take-home salary was slightly in excess of $3,000 per year and that such salary constituted his only source of income. Prior to their marriage, Mrs. Ryberg had informed Baird that she owned considerable property standing in her name and consisting of cash, government bonds, a home in Bismarck, North Dakota, and other property there situate.

On September 14, 1948, being the week preceding their marriage, the couple opened a joint checking account in the Missoula bank wherein Baird thereafter made a series of deposits with money received from his salary warrants. Also in September Mrs. Ryberg delivered to the bank certain government bonds accompanied by her application to the treasury department requesting the reissuance of the bonds so as to make them payable to herself or Baird as co-owners. Upon their reissuance and return the bonds were deposited in a joint safety deposit box which the couple had rented from the bank and to which each had access.

Following their marriage Emma Ryberg Baird urged her husband to pay off his G. I. loan and on November 3, 1948, she voluntarily withdrew $5,500 from her individual savings account and deposited such sum in the couple's joint checking account to enable her husband to pay and wipe out his G. I. loan.

On the following day, November 4, 1948, with the knowledge and consent of his wife, Baird paid his debt in full with a check drawn by him on the joint checking account receiving in return a release and satisfaction of the mortgage which he had given to secure the repayment of the loan.

In December 1948, Emma Baird decided to either sell or trade in her Chevrolet on a new car and on January 27, 1949, Baird, with the knowledge and consent of his wife, placed an order for a new Pontiac automobile making a $200 deposit thereon with a check drawn by him on the joint checking account.

On March 10, 1949, the new Pontiac arrived and Baird, with the knowledge and consent of his wife, accepted delivery paying the balance due on the purchase price with funds obtained from the sale of some of the jointly held government bonds. Following the purchase of the new car the wife sold her Chevrolet for $1,050 and invested the entire proceeds in government bonds.

In April 1949, a small fishing boat and an outboard motor were purchased and paid for by a check drawn by Baird on the joint checking account. Thereafter the boat and motor were much used by Baird and his wife on the numerous fishing trips which they shared together that spring and summer.

Subsequent to her marriage, Emma Baird gave away many presents including a new coat and two suits to one woman,--a costly dress to another,--two guns to her husband, and to various other persons she delivered various and sundry articles which, according to her version were merely 'stored' with such persons but which, according to Baird, were delivered to them as gifts.

On September 9, 1949, Emma Baird, of her own volition, quit her husband and moved out of the family domicile telling Baird that she was through with him. Upon leaving the family home she took with her all her wearing apparel and personal effects as well as many articles for which she had no immediate need including the lawn mower, a two-wheel auto trailer, a canvas tarpaulin, a washing machine, wedding presents as well as a $79 platform rocker and various dishes and rugs.

This turn of events brought to a sudden end the sharing with her husband of the fishing excursions, the home, the new Pontiac car, the boat and outboard motor, and on September 10, 1949, being the day after she left him, Emma Baird commenced this suit in equity against her husband seeking a decree of the court ordering the sale, at public auction, of the husband's dwelling at 118 Beverly street, the Pontiac car, the fishing boat and motor and further ordering that the proceeds of such sales be impressed with a trust in her favor in the amount of $8,913.50, for advancements claimed to have been made to her husband after their marriage, the complaint alleging that such advancements were procured by reason of false and fraudulent representations made during the couple's courtship and prior to their marriage.

The husband appeared and defended. A trial of the issues before the court sitting without a jury resulted in findings of fact, conclusions of law and decree for plaintiff. From the decree so entered defendant has appealed assigning as error the denial of his general demurrer to the complaint, the making of the trial court's findings and conclusions and the rendering and entering of the decree against him.

Defendant appeared by motion to strike designated portions of the complaint which motion was allowed in part. Next defendant interposed a general demurrer to the complaint and upon the overruling thereof he answered admitting certain averments of the complaint and denying others including those accusing him of making false or fraudulent representations.

The representations whereof plaintiff complains are pleaded in the third paragraph of her complaint which reads: 'III. That prior to said intermarriage and for the purpose of inducing plaintiff to consent to said marriage, the defendant falsely and fraudulently represented to her that he was an honest, honorable man, that he loved her and wanted her to be his wife, that he wanted to make a home for her and lead a happy, normal married life, and concealed from her his real character. That the plaintiff believed and relied upon said representations...