Boise, Butcher Co., Ltd. v. Anixdale

• Decision Date: 06 November 1914
• Citation: 26 Idaho 483,144 P. 337
• Parties: BOISE, BUTCHER CO., LTD., a Corporation, Respondent, v. ANNA V. ANIXDALE, Appellant
• Court: Idaho Supreme Court

144 P. 337

26 Idaho 483

BOISE, BUTCHER CO., LTD., a Corporation, Respondent, v. ANNA V. ANIXDALE, Appellant

Supreme Court of Idaho

November 6, 1914

CREDITOR'S BILL-PROCEEDINGS SUPPLEMENTARY TO EXECUTION-SUFFICIENCY OF COMPLAINT-SEPARATE PROPERTY OF MARRIED WOMAN-COMMUNITY PROPERTY-ESTOPPEL.

1. Held, that a complaint on a judgment brought against a person alleged to have money of the judgment debtor in her possession, under the authority of the order provided for in sec. 4510, Rev. Codes, which substantially shows that the judgment was rendered by a court of competent jurisdiction its date, amount and the parties thereto, and then alleges facts showing that proper proceedings under the provisions of chap. 2 of title 9, providing for proceedings supplementary to execution, had been taken, that the order provided for in said sec. 4510 had been duly obtained, and further alleges that the defendant has money belonging to the judgment creditor subject to execution in her possession, is sufficient when tested by a general demurrer.

2. A married woman bought a meat market which was personal property, placed her husband in possession of the shop authorized him to manage and control the business, buy and sell meat, receive the money from sales and pay the bills incurred in the business and thereafter her husband, as manager of the business, went to a wholesale butcher company represented himself as the proprietor of said meat market bought meat there, and obtained credit from said company, which was given under the belief that he owned the shop and the business, and his wife never notified said company of her ownership of the property, and the company had no knowledge of it. Held, that under these circumstances she is estopped from asserting ownership to the property when it would result in the loss of a debt contracted by her husband.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action in the nature of a creditor's bill brought by the respondent to subject certain money alleged to be in the hands of the appellant to the payment of a judgment obtained against Alfred Anixdale, her husband, under the provisions of sec. 4510, Rev. Codes. Defendant appealed. Judgment affirmed.

Judgment affirmed. Costs awarded to respondent.

J. C. Johnston and J. J. McCue, for Appellant.

This evidence shows that Alfred Anixdale was the agent of appellant and acted under instruction from his principal not to contract any bills upon credit, but to pay cash and do business only upon the cash basis, and that she never gave her agent any authority to buy on credit. The authority to buy does not include buying on credit. (Berry v. Barnes, 23 Ark. 411; Jaques v. Todd, 3 Wend. (N. Y.) 83; Mechem on Agency, sec. 363.)

"A principal is not bound by the acts of his agent unless authorized." (Lewis v. Bourbon County Commrs., 12 Kan. 186.)

"A person who deals with an agent is bound to inquire into the extent of his authority, ignorance of which is no excuse." (Thorsen v. Babcock, 68 Mich. 523. 36 N.W. 723; Baxter v. Lamont, 60 Ill. 237; Saginaw etc. R. Co. v. Chappell, 56 Mich. 190, 22 N.W. 278; 1 Clark & Skyles on Agency, sec. 452.)

"Where an indebtedness is contracted by the husband and the credit given to him, the wife cannot be held liable therefor." (Larson v. Carter, 14 Idaho 511, 94 P. 825.)

"The law does not favor the divestiture of the wife's separate estate by her implied consent." (Dozier v. Freeman, 47 Miss. 647.)

Harry S. Kessler, and Hawley, Puckett & Hawley, for Respondent.

The property and business in Boise was acquired after marriage; therefore, the prima facie presumption at once arises under our statute that this property was community property. (Douglas v. Douglas, 22 Idaho 336, 125 P. 796; Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66; 6 Am. & Eng. Ency. of Law, 2d ed., 327, and authorities cited in note.)

The appellant, so far as respondent knew, had nothing whatever to do with the shop. She never notified the plaintiff that she was the owner and respondent probably never heard of her until it had secured a judgment against Mr. Anixdale and then she appeared on the scene and claimed it as her separate estate. Under every principle of equity, appellant is estopped from claiming the proceeds of the business adversely to the claims of respondent. (Jones on Evidence, secs. 275, 276; 11 Am. & Eng. Ency. of Law, 2d ed., 421, 422, and cases, cited; Bowen v. Howenstein, 39 App. Cas. (D. C.) 585; Ann. Cas. 1913E, 1179.)

"An estoppel in pais requires, as to the one against whom the estoppel is claimed, opportunity to speak, duty to speak, failure to speak, and reliance in good faith on such failure." (Sheffield Car Co. v. Constantine Hydraulic Co., 171 Mich. 423; Ann. Cas. 1914B, 984, 137 N.W. 305.)

TRUITT, J. Sullivan, C. J., concurs.

OPINION

TRUITT, J.

This action is in the nature of a creditor's bill and was brought by the Boise Butcher Co., a corporation engaged in business in the city of Boise, Idaho, to subject certain money alleged to be in the hands of the appellant, Anna V. Anixdale, to the payment of a judgment for $ 205.96, obtained against Alfred Anixdale, the husband of said Anna V. Anixdale, in the justice's court for Boise precinct, Ada county, Idaho, on April 18, 1913. The cause of action against said Alfred Anixdale in the said justice's court, as alleged in the complaint therein, was for meat and goods in that line of trade sold and delivered to him by the respondent company in February, 1913, while he was conducting the O. K. Meat Market in Boise, Idaho. Execution on said judgment was thereafter issued, placed in the hands of the constable of said Boise precinct, and by him returned nulla bona. Thereafter proceedings supplementary to the execution were had under chap. 2, title 9, Rev. Codes, in said justice's court. As provided for under the provisions of said chap. 2, the said Anna V. Anixdale and her said husband appeared in said court and were examined under oath regarding the property of said Alfred Anixdale. After this examination on or about April 29, 1913, complaint was filed in said justice's court against said Anna V. Anixdale, and the result of said examination is stated therein in connection with other material allegations as follows: "That an order was duly made and entered by G. G. Adams, justice of the peace of said precinct, that an action be instituted against said Anna V. Anixdale for the recovery of such money, and forbidding the transfer of the same until an action be commenced and prosecuted to judgment. That plaintiff is informed and believes from the evidence produced at the examination aforesaid that this defendant has in her possession certain money in the sum of about $ 900 which is the community property of this defendant and the said Alfred Anixdale, and that this defendant wrongfully and fraudulently claims said money as her sole and separate estate."

Though, as above stated, the complaint in this action was filed in the said justice's court, it was for some reason transferred from there to the probate court of said Ada county, and the subsequent proceedings in the case were in that court. The appellant appeared therein and filed a demurrer to the complaint. This was overruled, and then she filed her answer in which the allegations of the complaint were denied, and she alleged that the said money in her hands was her separate property. The case was tried in the probate court with a jury, a verdict was rendered by said jury in favor of said company for the amount claimed in the complaint, and upon this verdict the court entered judgment in favor of said company for said amount and for costs of the action. The said Anna V. Anixdale, appellant herein, appealed from said judgment to the district court of the third judicial district of this state for Ada county. The case was tried de novo before the court with a jury. This jury returned the following verdict, to wit: "We, the jury in the above-entitled cause, find for the plaintiff and against the defendant and assess plaintiff's damages at $ 205.96, and interest amounting to $ 4.80, making a total of $ 210.76 and costs of suit." The court entered judgment against the said Anna V. Anixdale, and in favor of said Boise Butcher Co. in accordance with said verdict, and also ordered her to pay from said money in her possession the amount of said judgment so entered against her. From this order and judgment this appeal is taken by said Anna V. Anixdale as appellant.

There are seven errors specified by appellant on the motion for a new trial and urged upon the trial court as grounds for setting aside the judgment, and these errors are set out at great length in appellant's brief herein. The first error presented by the brief of appellant is that the complaint does not state facts sufficient to constitute a cause of action; that it is ambiguous and uncertain; and, further, that there is another action pending.

The complaint is brought under the provisions of sec. 4510, Rev Codes, and we think it states a cause of action as specially provided for by that section. In substance, it alleges that the plaintiff obtained a judgment to secure the payment of which the action was brought, states the court wherein it was obtained, the date, and the amount of the judgment. It also alleges that execution was issued on said judgment and placed in the hands of the officer for service, and that he returned it nulla bona; that thereafter the defendant and her husband, Alfred Anixdale, appeared in court on proceedings supplementary to execution, and were examined under oath regarding the property of the said husband. It further alleges that an order was then duly made directing that an...