Edgerly v. Equitable Life Assur. Soc. of United States

• Decision Date: 29 June 1934
• Citation: 287 Mass. 238,191 N.E. 415
• Parties: EDGERLY et al. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 238

191 N.E. 415

EDGERLY et al.

v.EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1934.

Appeal and Report from Superior Court, Suffolk County; Whiting, Judge.

Bill in equity by Arnault B. Edgerly and another against the Equitable Life Assurance Society of the United States and others, to which Haidee S. Crowell demurred. From an order and decree sustaining the demurrer, plaintiffs appealed, and the trial judge certified that before further proceedings the matter should be determined by the Supreme Judicial Court and reported the questions.

Interlocutory decree affirmed.

J. B. Wolbarsht and W. L. Berger, both of Boston, for plaintiffs.

S. M. Salny and E. W. Baker, both of Fitchburg, for defendants.

FIELD, Justice.

This bill in equity, so far as the questions for our determination are concerned, is a bill to reach and apply to the payment of an alleged debt of the defendant Haidee S. Crowell, hereinafter referred to as the defendant, certain alleged property of said defendant, G. L. (Ter. Ed.) c. 214, § 3(7). The allegations in regard to the debt are as follows: ‘1: The defendant Haidee S. Crowell for some years prior to the bringing of this bill was engaged in the general stock brokerage business together with her late husband H. Hollon Crowell under the name and style of ‘H. Hollon Crowell’ (hereinafter distinguished from H. Hollon Crowell, individually, by being described in quotes as follows: ‘H. Hollon Crowell’). 2: Said business was conducted as a joint venture by the defendant Haidee S. Crowell and H. Hollon Crowell for their mutual profit, and each of said persons in the conduct and transaction of the said business acted as agent for the other and each was duly authorized to contract for and bind the other by any and all contracts, agreements or undertakings within the scope of a general stock brokerage business. 3: The plaintiffs were clients or customers of the aforesaid business of ‘H. Hollon Crowell’ and as such have paid varying and substantial sums to either or both the said defendant Haidee S. Crowell and/or H. Hollon Crowell for the express purpose and with express directions to buy or sell, as the case may have been, stocks, bonds or other securities. 4: That at divers times and for the purpose of providing security or margin to cover the accounts carried by the plaintiffs with the said ‘H. Hollon Crowell’ and at the request of Haidee S. Crowell and/or H. Hollon Crowell, their agents or servants, your plaintiffs have delivered securities of various descriptions to cover their respective accounts with ‘H. Hollon Crowell.” The defendant demurred ‘to so much of the bill of complaint as sets forth or alleges that she was engaged in a general stock brokerage business, together with her late husband, H. Hollon Crowell, which business was conducted as a joint venture for their mutual profit, and assigns as causes therefor the following: 1. That said allegations do not set forth a legal cause of action against this * * * [the defendant]. 2. That there is no equity in so much of the bill of complaint as is based on these allegations.’ The trial judge made an order for a decree sustaining the demurrer on the first ground thereof, and thereafter a decree that ‘the demurrer be and hereby is sustained on the first ground set forth therein, and that so much of the bill of complaint as seeks to establish direct liability against the defendant, Haidee S. Crowell, be and hereby is dismissed.’ The plaintiffs appealed from the order and from the decree and the judge certified that his ‘ruling, order and decree on the demurrer * * * so affects the merits of the controversy that the matter should, before further proceedings, be determined by the Full Bench of the Supreme Judicial Court,’ and reported the questions raised thereby for that purpose.

The demurrer was sustained rightly. The bill was brought not to subject partnership property to the debts of partnership creditors, but, rather, to establish a debt of the defendant personally, and to reach and apply her property to the payment thereof. But the facts alleged do not show that she is personally indebted to the plaintiff.

There are no allegations in the bill of acts or conduct of the defendant, or of her husband as her agent, as in Reiman v. Hamilton, 111 Mass. 245, or of the defendant and her husband jointly, as in Parker v. Kane, 4 Allen, 346, which would subject her severally or jointly with her husband to liability apart from the alleged ‘joint venture.’ The allegations of payment of money ‘to either or both the said defendant Haidee S. Crowell and/or H. Hollon Crowell’ or of delivery of securities ‘at the request of Haidee S. Crowell and/or H. Hollon Crowell, their agents or servants,’ are not allegations of such acts or conduct. The allegation with regard to the defendant and her husband that ‘each of said persons * * * acted as agent for the other and each was duly authorized to contract for and bind the other by any and all contracts, agreements or undertakings within the scope of a general stock brokerage business' is limited to agency ‘in the conduct and transaction’ of the business ‘conducted as a joint venture,’ and do not state that the defendant's husband was her agent in the conduct and transaction of business independent of the alleged ‘joint venture.’

The defendant did not become liable to the plaintiff by reason of any acts or conduct in pursuance of the ‘joint venture’ considered as a partnership. Since at the common law and, after St. 1874, c. 184, § 1, by statute (see now G. L. [Ter. Ed.] c. 209, § 2), a married woman cannot contract with her husband, the defendant, before the uniform partnership act was adopted in this Commonwealth (St. 1922, c. 486, see now G. L. [Ter. Ed.] c. 108A), could not be a partner with her husband or become personally liable to third persons by reason solely of transactions carried on by an attempted partnership between her and her husband. This was decided in Lord v. Parker, 3 Allen, 127, before the enactment of St. 1874, c. 184 (see also Plumer...