Carey v. Btjrritss

• Decision Date: 11 November 1882
• Court: West Virginia Supreme Court
• Parties: Carey & Co. v. Btjrritss and Pitzer.

20 W.Va. 571

Carey & Co.

v.Btjrritss and Pitzer.

Supreme Court of Appeals of West Virginia.

Submitted January 19, 1881

Decided November 11, 1882.

(*Snyder, Judge, Absent.)

1. A court of law in this State will hold the contract of a married woman, living with her husband, whereby she professed to form mercantile partnership with a third party, as an absolute nullity, (p. 579, 582.)

2. A married woman cannot be sued in a court of law in this State, on any contract made while she was living with her husband, either individually or jointly with another as her partner, (p. 575.)

3. But the person who has entered into a partnership with a married woman, living with her husband, may be sued at law in this State individually for a partnership debt; and if he plead, in abatement, that she was his partner and should be sued with him, the plaintiff could reply that, when the debt was contracted she was a married woman and such replication would be good. (p. 582.)

4. Or in such case, the plaintiff can travers the plea and allege, that she was not a partner of the defendant and on an issue joined on such replication if the the defendant proves, that she entered into articles of co-partnership witli him, and the plaintiff proves she was, when such partnership was formed and when the debt sued on was contracted a married woman living with her husband, the jury should find a verdict for the plaintiff; for the married woman living with her husband, can not be recognized by a court of law, as a partner in business with any one. (p. 583.)

5. If a plea in abatement is filed, not at rules but at court, and issue is taken upon it and tried and the verdict of the jury is set aside and a new trial awarded, the plaintiff may then ask the court to set aside the issue and permit him to withdraw his replication to the plea. And this the court should permit him to do, and he may then ask the court to strike out the plea in abatement as being filed too late, and on his request this should be done. (p. 583.)

Writ of error to a judgment of the circuit court of the county of Monroe, rendered on the 19th day of May, 1879, in an action in said court then pending, wherein James Carey & Co., were plaintiffs, and Burruss & Pitzer were defendants, allowed upon the petition of said plaintiffs.

Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

James Carey and (diaries Bangs, partners under the name and style of James Carey & Co., on July 19, 1878, sued in the circuit court of Monroe, F. N". Burruss & I. B. Pitzer, recently trading under the firm name ot Burruss & Pitzer, and then trading under the firm name and style of Burruss & Co., in an action of debt for eight hundred and thirty-five dollars and thirty cents, damages two hundred dollars. A declaration was filed not necessary to he set forth, on the first Monday in September, 1878, and on the first Monday in October the office judgment was entered for the plaintiffs, and regularly confirmed; at the next term of the court, on October 14, 1878, the defendant, F. N. Burruss, filed two pleas, one the plea of nil debit, and she other a plea that he was not then and never had been, a partner of J. B. Pitzer, his co-defendant; which pleas were sworn to, and I. B. Pitzer, filed a plea in abatement, that the plaintiff's cause of action, if any, is jointly against him and one K. McK. Burruss, who at the time of the commencement of this suit was, and still is, living in Monroe county, West Virginia, who was and is his partner in said firm. This plea was also sworn to. These pleas were replied to generally, and issue was joined on them, and on May 14, 1879, a, jury was sworn to try the issues joined, which found a verdict, "that Kate McK. Burruss, is a partner of the firm of Burruss & Pitzer, in the town of Alderson, Monroe county, West Virginia." The plaintiffs moved to set aside this verdict as the record states, "upon the plea of abatement in this cause, which motion was overruled and thereupon the court quashed the plaintiffs' writ and adjudged, that the defendant, I. B. Pitzer, recover against the plaintiffs his costs."

To the judgment of the court overruling the plaintiffs' motion for a now trial, the plaintiffs excepted and the bill of exceptions sets forth all the evidence given on the trial. The bill of exceptions states, that this exception was taken on the trial on the issues on the plea in abatement, filed by I. B. Pitzer. The evidence proved, that on March 24, 1877, Kate McK. Burruss, entered into written article of partnership with I. B. Pitzer, her brother, whereby a partnership was formed known as Burruss & Pitzer, and they thereby constituted I. II. Burruss, the husdand of Kate McK. Burruss, their agent to sell all their goods at Alderson, Monroe county, West Virginia; and conferred on him full authority to manage all their business as he pleased except, that he was to sell the goods for cash or its equivalent.

The fact, that F. N. Burruss, was acting as an agent for his brother-in-law and his own wife, was unknown to the plaintiffs or to the public; that nothing was ever said or done by F. N. Burruss, nor by any member of this firm, to indicate to the plaintiffs or to the public, that F. N. Burruss was not a member of the firm of Burruss & Pitzer, called afterwards Burruss & Co.; nor was any thing said or done to indicate to the plaintiffs or to the public, that Kate McY. Burruss, the wife of F. X. Burruss, was a member of said firm or claimed any interest in it. She had no separate estate and contributed nothing to the business except, about one hundred and fifty or two hundred dollars of goods, which her husband F. N. Burruss, assigned to her, being his interest in the goods of a firm of Burruss & Pitzer, which in 1874 was doing business in Alleghany county, Ya. These goods were brought to Alderson, Monroe county, W. Va., in 1877, and placed in the store of Burruss & Pitzer, which was the time when articles of copartnership were signed, and this firm commenced business in Alderson, Monroe county, W. Va. The notes given to the plaintiff sued on were in the handwriting of F. N. Burruss, signed in the partnership name. The goods for which these notes were given, were bought by F. N. Burruss in person, for the firm. That he alone managed and controlled the business of the firm at Alderson. His wife took no part whatever, in the control of the business, and the public generally, as well as the plaintiff, always regarded F. N". Burruss and I. B. Pitzer, as the partners in these firms. It was also proven, that when this partnership was formed and when the contracts were made, on which the suit was brought and when the suit was brought, Kate McK. Burruss, was a married woman living under coverture with her husband, F. N". Burruss, and not separate or apart from him, and she still is such married woman so living.

Dennis $ Dennis for appellants cited the following authorities: 2 Kelly Stat. ch. 153, § 21; 1 Rob. Old Pr. 355; Bar. L. Pr. 230; 5 Rob. Pr. 16, 102; Sto.. Partn. §§ 10, 64; 10 W. Va. 171; 6 Leigh 58; 2 Rand. 478; 21 Gratt, 281; Steph. PI. 96-7; 1 Kelly Stat. ch. 12, § 11; 1 Gr. Ev. § 207; 8 Graft. 9; 8 1). & F. 545; Coll. Partn. 7, 43; 53 111. 163; 43 111. 157; 47 111. 24; 24 N Y. 388; 21 Perm. 349; 35 Pa, 375.

John W. Harris for appellees cited the following authorities: Code ch. 125 § 18; 12 W. Va. 350; 12 Gratt. 74; 17 Gratt, 503; 2 John. 279; 2 Rand. 478; 16 Gratt. 448; Code ch. 134, § 3; Kelley Stat. ch. 160, § 3.

Green, Judge, announced the opinion of the Court:

There were various questions mostly technical in their character, which have been argued by counsel in this case and the consideration of which I will not undertake, because I deem it unnecessary to decide them, as the case can be decided satisfactorily on its substantial merits. The principal question on its substantial merits involved in this case is, whether a married woman in this State living with her husband, can enter into a mercantile partnership with a third person, which a court of law could recognize so, that she and such third person could be sued at law for a partnership debt.

It is a fundamental principle of the common law universally recognized, that a married woman has no capacity to enter into any contract, Her contracts were not simply voidable as the contracts of an infant for the most part, but were absolutely null and void in a court of law. And of course therefore, she could at common law have entered into no partnership, which a court of law would recognize; and of course she and her so-called partner, could not he sued at law on any so-called partnership debt. Lord Kenyon said in Clayton v. Aehms, 6 F. R. 604: "If any one proposition of law be more clear than another it is that an action cannot be brought against a feme covert; a court of law cannot get at her property if she have any." To this rule there were but two exceptions, first, when her husband is eiviliter mortuous, and secondly, under the custom of London she could carry on business herself. These exceptions have of course no existence in this country, so that without any exception in this country by the common law, no married woman can enter into any contract which a common law court would recognize. All her contracts were utterly null and void in a common law court.

But on the other hand, from the time courts of equity in England first began to recognize separate equitable estates in married women, they held, that there were some contracts of married women that they would not regard as utterly inoperative, null and void, as did the common law courts. And debts created by certain sorts of contracts could always have been enforced in a court of equity against a married woman's separate estate. What the character of the contract made by a married woman must be, and under what circumstances it must have been made to justify a court...