Barlow Bros. Co. v. Parsons

• Decision Date: 29 May 1901
• Citation: 73 Conn. 696,49 A. 205
• Parties: BARLOW BROS. CO. v. PARSONS.
• Court: Connecticut Supreme Court

49 A. 205

73 Conn. 696

BARLOW BROS. CO.

v. PARSONS.

Supreme Court of Errors of Connecticut.

May 29, 1901.

Appeal from superior court, New Haven county; George W. Wheeler, Judge.

Action by the Barlow Bros. Company against Eliza J. Parsons. From a judgment in favor of plaintiffs, defendant appeals. Reversed,

This action was brought to recover certain moneys claimed to have been deposited with the private banking house of G. S. Parsons & Co. There are two counts in the complaint,—the first, for the deposits made prior to the 11th day of October, 1898. The second was for the sums deposited between the 11th day of October, 1898, and the 2d day of November, 1898. The main facts of the case are as follows: Guernsey S. Parsons, husband of the defendant, was engaged in the business of private banking at Waterbury from about the year 1876 to his death, in 1898,—a t the first in partnership with William Brown under the name of Brown & Parsons; afterwards in partnership with Israel Holmes. The name was then Holmes & Parsons. Mr. Holmes died February 12, 1895. After that time the business was carried on under the name of G. S. Parsons & Co. down to the time of the death of Mr. Parsons, on the 11th day of October, 1898. The defendant was married to Mr. Parsons on the 14th day of October, 1858. They lived together as husband and wife till his death. They never entered into any contract for the application to them, or either of them, or to their property rights, of any of the provisions of sections 2796-2798 of the General Statutes of the Revision of 1888. Prior to July 2, 1896, Mr. Parsons asked the defendant if she would allow him to use her name in connection with said business. She said she did not wish to Involve her property, and, being assured by him that her property would not be involved, she consented to such use. The same day Mr. Parsons prepared and caused to be published in the Waterbury papers a notice to the effect that a partnership had been formed between himself and the defendant for the transaction of a general banking business. The defendant knew of the publication. Also on said day the defendant signed a bond, as surety for her husband, by which Mr. Parsons agreed to save the estate of Mr. Holmes from all loss, costs, or expense resulting from the use by him of the said firm name of Holmes & Parsons up to that date, and to pay all the debts of the said late firm, and to save the said estate harmless therefrom. Mr. Parsons died on the 11th day of October, 1898. He had been sick and confined to his house for some time. His death immediately followed a surgical operation. The defendant was very greatly prostrated by his death, and thereafter for some time was unable to attend to any business or to talk about business matters. Mr. William B. Merriman married the only child of Mr. and Mrs. Parsons. They all lived together for years, and until within the last six months. After Mr. Parsons' death, he was the only man in the family, and he did everything relating to Mrs. Parsons' business affairs which she requested him to do, or which he concluded ought to be done. The defendant and Mr. Merriman were on the 24th day of October, 1898, appointed administrators on the estate of G. S. Parsons. On the 2d day of November, 1898, receivers were appointed on the business of G. S. Parsons & Co. Upon the trial of the case the plaintiffs called the said William B. Merriman as a witness in chief in their behalf. He was examined as follows: Said Merriman, after testifying in behalf of defendant, and being examined by both parties until they had finished, and concerning what took place between himself and defendant in respect to the conduct of the business subsequent to her husband's decease, was inquired of by the court as follows: "Q. Can you recall any act of yours that you haven't testified to that was done in consequence of what Mrs. Parsons told you? A. In consequence of what Mrs. Parsons told me? Q. Yes. A. No, sir; I cannot. Q. Do you mean to say that you have stated here all the conversations, or all of the subjects of conversation, you had with Mrs. Parsons between the time of his death and the time the receivers were appointed'? A. Well, 1 had as little conversation as possible. Q. I didn't ask that. I asked you whether you stated here all the conversation—all the business conversations —you had with her between these two dates. A. I think I have covered it all, sir. Q. From your talk with Mrs. Parsons, did she know that the business was going on after her husband's death, down to the appointment of the receivers? A. Why, I suppose she must have known it Q. From your talk with her, —what was said between you,—did she know the business was going on? A. She must have known it Q. Can you give any conversation that you had with her, or that she had with you, concerning that matter? A. No, sir. Q. Did she ask you anything about where that paper came from that you took up to her,—the application for the appointment of the receivers? A No, sir. Q. Had you mentioned the fact of the receivership 1 to her before? A. Before that day? Q. Yes. A I think so. I think the day before. It was the day before. Q. That is a conversation you haven't said anything about. What was it? A. Well, I think the day before I said I didn't see how we could do anything but have receivers appointed, things were in such a condition. Q. What did she say? A. Why, I should say?Why, I suppose she would say it couldn't be helped. Q. I don't care what she would say. What did she say to you? A. I would say if I could recollect what she said, but I can't. Q. Oh, the substance of it. A. Well, I should say that she said, T suppose there is nothing else to be done.' Q. What else did you say to her that day about the appointment of receivers? A. I might have mentioned the receivers which we would like. Q. Well, what did you say? Is what I am after. A. Why, I must have said?Mr. Williams: I object to what he must have said. Q. What you said, Mr. Merriman, or the substance of it A. Why, that we should have Mr. Elton and Mr. Chase, if we could get them, as receivers. Q. You told Mrs. Parsons that before the application for the receivership was made? A. I think I did; yes, sir. Q. If you could get Mr. Elton and Mr. Chase for receivers, they would be the persons? A. I thought they would be proper persons. Q. What did she say to that? A. She said they were good men, certainly. Q. Anything else that she said that you remember at that time? A. No, sir; I don't recall anything. Q. Did you tell her what you had done in connection with the appointment of receivers? A. I don't understand. Q. Anything said at that time about the employment of an attorney for the purpose of conducting this matter? A. I think not sir. Q. By you or her? A. I think not, sir. Q. Had anything been said before that time in regard to the employment of an attorney by her, or by you to her? A. Well, before the receivership? Q. Yes, sir; from the date of Mr. Parsons' death down to this time. A. I don't recall it Q. Try and remember. A. I will try. I can't remember, sir, whether I spoke of the employment of an attorney in the matter. Q. Well, did she speak to you on that subject? A. No, sir; she certainly did not because she was prostrated. Q. Do you know whether any attorney consulted with her during that time? A I am very sure that none did. Q. To your knowledge? A. No, sir; not to my knowledge. Q. You mean to say from anything she said to you in these two talks about the receivership, or anything you said to her, that she didn't know that you were going to some one to have the necessary papers drawn? A. Oh, I don't mean to say that. I think she would take that for granted. Q. Well, I am not going to take it for granted. From what she said, whether she knew what was going to be done? A. She knew what I was doing all that I could in the matter. That is all, sir. Q. From what she said? A. Well, we had so little conversation?She was in such a condition I couldn't talk to her more than absolutely necessary. Q. Well, what I am getting at is whether she knew from what was said to her, or what she said to you, what you did in connection with the receivership. A. Why, I don't think she did know it Q. You don't think you told her? A. No; I don't think that I told her. Q. You don't think she gave you at any time any instructions about the employment of an attorney? A. Why, I know she did not. Q. You don't think that you consulted her at any time about the employment of an attorney? A. No, sir." The above is a complete transcript of all that took place on the trial regarding this matter, no objection or exception being taken during the trial. In the finding the court states that "Mr. Merriman was a reluctant witness, and endeavored to conceal facts which might tend to establish his agency for his mother-in-law, and his acts in the conduct of this business. The record, of course, fails to show the attitude of this witness entirely, but it does, I think, show the facts stated above." Such other facts as are necessary to understand the questions decided are mentioned in the opinion.

William H. Williams and Stephen W. Kellogg, for appellant.

Lucien F. Burpee and John O'Neill, for appellee.

ANDREWS, C. J. (after stating the facts). It appears that the first count in the complaint was brought to recover the amount of certain deposits made by the plaintiffs prior to the death of Mr. G. S. Parsons with the private banking house of G. S. Parsons & Co. The court instructed the jury that inasmuch as the defendant was a married woman,—married before 1877,—and had never entered into any contract for the application to her or to her property of the provisions of the public act of that year relating to the property rights of married women, the law was so that, under the averments of that count and the evidence, she could not be held liable for the amounts sought to be recovered, We think this instruction was...