Boise Ass'n of Credit Men, Ltd. v. Glenns Ferry Meat Co.

• Decision Date: 09 January 1930
• Docket Number: 5259,5260
• Citation: 283 P. 1038,48 Idaho 600
• Parties: BOISE ASSOCIATION OF CREDIT MEN, LTD., a Corporation, Respondent, v. GLENNS FERRY MEAT COMPANY, a Copartnership, HOMER GREER, MILTON DUNN and FRANK ROWE, Defendants, and JULIA ROWE, Appellant. BOISE ASSOCIATION OF CREDIT MEN, LTD., a Corporation, Respondent, v. GLENNS FERRY MEAT COMPANY, a Copartnership, MILTON DUNN and FRANK ROWE, Defendants, and JULIA ROWE, Appellant
• Court: Idaho Supreme Court

283 P. 1038

48 Idaho 600

BOISE ASSOCIATION OF CREDIT MEN, LTD., a Corporation, Respondent, v. GLENNS FERRY MEAT COMPANY, a Copartnership, HOMER GREER, MILTON DUNN and FRANK ROWE, Defendants, and JULIA ROWE, Appellant. BOISE ASSOCIATION OF CREDIT MEN, LTD., a Corporation, Respondent, v. GLENNS FERRY MEAT COMPANY, a Copartnership, MILTON DUNN and FRANK ROWE, Defendants, and JULIA ROWE, Appellant

Nos. 5259, 5260

Supreme Court of Idaho

January 9, 1930

HUSBAND AND WIFE-SEPARATE PROPERTY OF WIFE-CONDUCT OF BUSINESS BY WIFE-ESTOPPEL-GIFTS BY HUSBAND TO WIFE OF COMMUNITY PROPERTY-FRAUDULENT CONVEYANCES-BULK SALES LAW-NOTICE TO CREDITORS.

1. Married woman, under C. S., sec. 4657, has absolute control of her separate property, and may dispose of it and contract with reference thereto in same manner and to same extent and with like effect as a feme sole.

2. Husband and wife may contract with each other.

3. When husband is free from debt, he may make wife a gift of community property which thereupon becomes her separate property.

4. Married woman may establish and carry on business with her own funds or funds secured on faith and credit of such business.

5. In actions on account, evidence showing wife purchased meat market business from husband when certain indebtedness incurred by former owner existed against business of which wife had knowledge, and letters to creditors regarding outstanding accounts and her control of bank account, held to support conclusion that wife purchased business for her own separate property, and assumed payment of preexisting debts as part of purchase price.

6. Failure to give notice to creditors of proposed transfer of merchandise as required by Bulk Sales Law (C. S., secs 5752-5756), held to entitle creditors to either pursue property or seek redress from purchaser individually.

7. Wife's assumption of payment of pre-existing indebtedness of business as well as indebtedness contracted in course of business after she became owner held contract in relation to her separate property under C. S., sec. 4657.

8. Where wife purchased business from husband, and creditors were not aware that bill of sale was not placed of record that no consideration was paid by her, and that transfer was made to deceive husband's employer, but allowed her to continue business without molestation, obtain further credits, and accepted payments on account made by wife under guise of sole owner, all with knowledge and consent of husband, neither husband nor wife held in position to contend as against creditors that purpose of transfer was to deceive third party and that wife was not in fact sole owner of business.

APPEALS from the District Court of the Third Judicial District, for Elmore County. Hon. Dana E. Brinck, Judge.

Actions on accounts. Judgments for plaintiff. Affirmed.

Judgments affirmed, with costs to respondent on each appeal.

L. E. Glennon, for Appellant.

The common-law disability of a married woman to enter into contracts still remains, except to the extent that it has been removed by statute. (Meir & Frank Co. v. Bruce, 30 Idaho 732, 168 P. 5; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497.)

A married woman cannot be held liable unless the plaintiff alleges and proves that the debt was created for her use and benefit or for the use and benefit of her separate estate. (C. S., sec. 4652; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Strode v. Miller, 7 Idaho 16, 59 P. 893; Bank of Commerce v. Baldwin, 14 Idaho 75, 93 P. 504, 17 L. R. A., N. S., 676; McFarland v. Johnson, 22 Idaho 694, 127 P. 911; Howell v. Martin, 36 Idaho 468, 211 P. 528; Smith v. Schultz, 23 Idaho 144, 129 P. 640.)

It was suggested by the trial court that the conduct of the appellant was such that she would be estopped from denying her ownership in the business of the Glenns Ferry Meat Company, although no facts were pleaded upon which an estoppel might be based. All of the authorities appear to hold that in order to effect an estoppel there must be conduct which induces another to believe the existence of a particular fact and the belief must be acted upon to his prejudice. Such a state of facts is not shown in this case.

"If a person by his conduct induces another to believe in the existence of a particular state of facts and the other acts thereon to his prejudice the former is estopped, as against latter, to deny that that state of facts does in truth exist." (21 C. J. 1060, sec. 2; Thompson v. First Nat. Bank, 111 U.S. 529, 535, 4 S.Ct. 689, 28 L.Ed. 507; Hahlo v. Mayer, 102 Mo. 93, 22 Am. St. 753, 13 S.W. 804, 15 S.W. 750.)

J. P. Pope, for Respondent Boise Association of Credit Men.

The rights of a married woman to contract have been greatly enlarged by our statute, and her rights to contract are prescribed by the statute and not by the rules of the common law. (Hall v. Johns, 17 Idaho 224, 105 P. 71; Overland Nat. Bank v. Halveston, 33 Idaho 489, 196 P. 217.)

A woman in this state may, while married, sue and be sued in the same manner as if she were single. (C. S., sec. 6637; Overland Nat. Bank v. Halveston, supra.)

The separate property of the wife is liable for her own debts contracted before or after marriage. (C. S., sec. 4665; Overland Nat. Bank v. Halveston, supra.)

The law is now well settled in this state, and generally, that a married woman who deals or assumes to deal in respect to a matter concerning which her common-law disabilities have been removed, is bound by an estoppel the same as any other person. (10 R. C. L., p. 738, and cases cited; Overland Nat. Bank v. Halveston, supra; Sassaman v. Root, 37 Idaho 588, 218 P. 374.)

VARIAN, J. Givens, C. J., and Budge, T. Bailey Lee and Wm. E. Lee, JJ., concur.

OPINION

VARIAN, J.

Plaintiff brought two actions, upon assigned accounts for goods, wares and merchandise furnished, against Glenns Ferry Meat Company and certain individuals. Appellant's answer denies generally the allegations of every cause of action in each complaint, and, as an affirmative defense, alleges that during all the times mentioned she was the wife of defendant Frank Rowe and living and cohabiting with him as such in the state of Idaho. Defendants Dunn and Glenns Ferry Meat Company each defaulted. The cases were consolidated for trial, and from separate judgments for plaintiff in each case, Julia Rowe appeals. As she alone appeals, it will not be necessary to consider the answers of the other defendants, or the findings and evidence in support thereof. Both appeals were heard together in this court upon the same transcript and briefs.

About April 20, 1926, defendants Homer Greer and M. C. Dunn opened the old Glenns Ferry Meat Company shop at Glenns Ferry, and continued in business under the said trade name until about October 16, 1926, when defendant Frank Rowe became the owner of the business with said Dunn. Appellant, wife of said Rowe, on October 16, 1926, signed the name "Rowe & Dunn, by Mrs. F. A. Rowe," to the following letter that was mailed to each creditor of Glenns Ferry Meat Company:

"Glenn's Ferry, Ida.

"Oct. 16th, 1926.

"Gentlemen:

"The Glenn's Ferry Meat Company, owned by Homer W. Greer is about to sell it business to Frank Rowe, and M. C. Dunn for the sum of $ 1600.00 purchasers assuming and agreeing to pay out standing bills, and accounts as a part of the purchase price. The said $ 1600.00 to be paid in installments, as follows:--Cash $ 250.00:--Nov. 18th. $ 125.00: Dec. 18th. $ 125.00:--$ 25.00 per. week thereafter until the full sum of $ 1600.00 with interest on deferred payments at 8% per. annum is paid. We are going to carry on the business, and hope this will be satisfactory to all concerned, and hope you will not crowd us on the payments. For we will pay them as fast as we can.

"Yours truly."

Shortly after November 13, 1926, the said defendant Frank Rowe, then in the employ, as locomotive engineer, of the Oregon Short Line Railroad Company, received notice from it calling attention to a transportation rule prohibiting its employees from engaging in other businesses without authority, and requiring him to sever his connection with the Glenns Ferry Meat Company. Thereafter, under date of December 6, 1926, defendant Frank Rowe executed and acknowledged a formal bill of sale to Julia C. Rowe (his wife) conveying to her all the stock, tools, merchandise, slaughter-house, etc., and assigning to her the book accounts of the Glenns Ferry Meat Company, all for the stated consideration of $ 1500 in hand paid. By this writing, not signed by Mrs. Rowe, she "assumes and agrees to pay" all outstanding accounts and obligations and keep her husband harmless against all claims "of any kind or nature."

Under date of February 16, 1927, appellant signed and mailed to each creditor of the Glenns Ferry Meat Company the following letter, viz.:

"Sirs: Enclosed please find check to apply an account of the Glenns Ferry Meat Co.

"Having purchased the interest of M. C. Dunn of said meat co. am now sole owner, and will do the best I can to get accounts paid. As you know this is the dullest time of the year it may be some little time before I get the account paid in full but as you have been very kind to us will do best I can on account.

"Very truly yours,

"GLENN'S FERRY MEAT CO.

"JULIA ROWE, Owner."

Thereafter on May 23, 1927, Dunn notified all creditors and took over the entire business of the Glenns Ferry Meat Company. During the entire period covered by the testimony, the business was conducted under the trade name of "Glenns Ferry Meat Company," irrespective of who the owner or owners at...