Fowle v. Torrey

• Decision Date: 03 May 1883
• Citation: 135 Mass. 87
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Henrietta Fowle v. Elbridge Torrey & another

135 Mass. 87

Henrietta Fowle v. Elbridge Torrey & another

Supreme Court of Massachusetts

May 3, 1883

Argued March 27, 1882

Suffolk. Bill in equity, filed January 24, 1880, against Elbridge Torrey and George E. Fowle, alleging that the plaintiff is the wife of George E. Fowle, who, with Torrey, formed a copartnership under the style of Fowle, Torrey & Company as dealers in carpets in Boston; that she deposited with or lent to said firm different sums of money, all from her separate estate, at different times, from September 1, 1869 until the dissolution thereof, taking generally, at the times of such loans, the notes or receipts of the firm for the money, the firm promising to pay her back the same, or any portion thereof, on demand, with interest thereon at eight per cent per annum; that an account of said dealings with the firm, including debits, credits and interest, up to April 27 1876, was furnished by Torrey to the plaintiff, showing a balance due to her on that date of $ 2881.79, and interest from June 30, 1875, which she believes to be correct; that, at the dissolution of the firm, Torrey took all the assets thereof, which he told the plaintiff were largely in excess of the liabilities; that she is informed that all the liabilities of the firm, excepting her claim, have been paid; that, after the dissolution of the firm, she requested Torrey to pay her claim; that he admitted his liability to pay her claim, and at no time refused to pay the same, and requested her to give her notes to George E. Fowle for the purpose of payment, which she did, believing that Torrey would pay them; that subsequently Torrey said he had the notes, that they had been paid and allowed in his settlement with George E. Fowle, who was largely indebted to the firm and to Torrey individually, and that all Torrey's liability to the plaintiff had been discharged by George E. Fowle, who had appropriated the money due to the plaintiff in the settlement of his liability to Torrey, all of which was without the plaintiff's consent or knowledge; that the plaintiff has since repeatedly demanded of Torrey her notes, or the payment of her claim; which he refuses, on the ground that he has settled and paid the same to George E. Fowle, and is under no liability to the plaintiff; that the plaintiff is informed and believes that, in the settlement claimed to have been made between Torrey and George E. Fowle, it was agreed between them that Torrey should assume and pay all the liabilities of the firm, and indemnify and hold George E. Fowle harmless against them, and Torrey should have as his own property any assets there might be over and above the liabilities, in which assets George E. Fowle should have no interest whatever; and that George E. Fowle has now no interest whatever in the assets of the firm.

The prayer of the bill was that the defendants might be ordered to state a full and correct account of the moneys received by them, either alone or as members of the firm of Fowle, Torrey & Company, from the plaintiff; and that Torrey be ordered to pay the amount due, with interest, to the plaintiff; and for general relief.

The defendant Torrey demurred to the bill, assigning as grounds of demurrer: 1. That the plaintiff has a complete and adequate remedy at law. 2. Want of equity. The defendant Fowle answered, admitting that all the allegations of the bill were true. Hearing upon bill, demurrer and answer before W. Allen J., who reserved the case for the consideration of the full court.

Bill dismissed.

The case was argued in March 1882, by J. Nickerson, for the plaintiff, and by A. S. Wheeler & J. H. Young, for Torrey; and was afterward submitted on briefs to all the judges.

Devens, J. Field, J. dissenting.

OPINION

Devens, J.

The plaintiff does not assert that any special promise was made to her by Torrey to pay the debt incurred by Fowle and Torrey. If so, she would apparently have a remedy complete and adequate, which should be pursued at law. Fowle v. Torrey, 131 Mass. 289. Nor can the bill be maintained upon the ground that she has given up the notes she took for the loan made to Fowle and Torrey. If of value and wrongfully detained by Torrey, her remedy would be complete by an action of trover. But they were not of value; they did not constitute the evidence of any binding contract, as none such could be made between husband and wife. A promissory note given to a wife by a partnership of which her husband is a member is void. Kenworthy v. Sawyer, 125 Mass. 28. Roby v. Phelon, 118 Mass. 541, 542.

While the Legislature has removed from a wife many of the disabilities she was under at common law, and has authorized her to hold property as a feme sole, to deal with it as such, and to sue and be sued in relation thereto, it has carefully provided always, in the acts by which this has been done, that nothing therein contained shall be construed as authorizing contracts between husband and wife, conveyances or gifts to each other (except by the husband to a limited amount), or as giving the right to either to sue or be sued by the other. Gen. Sts. c. 108, § 1. Sts. 1874, c. 184; 1879, c. 133. Whatever rights they had in these respects remain as they stood at common law before this legislation commenced.

The contention of the plaintiff is, that, as the money lent was her separate estate, if there are sufficient assets in the hands of Torrey to discharge her claim, those assets are to be treated as belonging to her. But, upon the case as presented, there are no elements upon which it is possible to raise any trust in her favor. No separate property of hers has passed into the hands of Torrey or of the firm by fraud, or without her consent, or with her consent, upon any agreement or understanding that it was to be held or kept as her separate property. The relation between the firm and herself was that of borrower and lender simply, and no trust was impressed upon the money which it received.

That no suit at law could be maintained upon these notes, or for the amount of the loan which they represented, must be conceded. Lord v. Parker, 3 Allen 127. Lord v. Davison, 3 Allen 131. Edwards v. Stevens, 3 Allen 315. Turner v. Nye, 7 Allen 176, 182. Bassett v. Bassett, 112 Mass. 99. Where a contract is clearly invalid at common law, to permit it to be made the foundation of a suit in equity would be to disregard well-established principles and obligations. A court of equity cannot furnish remedies for the breach of contracts which are themselves not authorized, and thus impart to them validity. Merriam v. Boston, Clinton & Fitchburg Railroad, 117 Mass. 241. Richards v. Delbridge, L. R. 18 Eq. 11. Hoare v. Contencin, 1 Bro. C. C. 27.

Nor, upon the allegations, is the husband merely a formal party to the bill. His interests are directly involved in its discussion. It is averred that Torrey admits that he had the notes of the plaintiff; that he asserts that they were paid and allowed in his settlement with Fowle, the husband; and that his liability had been discharged by the appropriation of the money due upon them by Fowle; and, further, that, in answer to the plaintiff's demand, Torrey has asserted that he has paid and settled for the same with Fowle, and that he is under no liability to the plaintiff. That this transaction took place the bill does not deny, but asserts that it was without the knowledge or consent of the plaintiff. The bill then alleges an agreement between Fowle and Torrey, by which Torrey was to pay all the liabilities of the firm, to have all the assets there might be over and above the liabilities; and that Fowle was to have no interest in them, he being saved harmless from all the liabilities. It does not allege any agreement on the part of Torrey to pay the specific debt due the plaintiff.

The bill therefore asserts the claim of the plaintiff as against both defendants, while in one aspect, as between themselves, the whole sum is equitably due from the husband, while in the other aspect it is equitably due from Torrey.

But, apart from the consideration that the contract itself between the wife on the one side and the husband and Torrey on the other cannot be recognized as valid, the fact that, in any proceeding, whether in equity or at law, to enforce it, the husband would of necessity be made a party, is conclusive that such proceeding cannot be maintained. Where the husband is not a necessary party, as where a claim is asserted by the wife against his estate in bankruptcy, this latter difficulty does not arise. In re Blandin, 1 Lowell 543. Where the wife becomes the owner of a valid claim against the husband, her right to enforce it is suspended during the coverture, even where the demand is such that she can, upon his decease, enforce it against his executors. The marital relation is such that the rights and remedies of creditors and debtors cannot be asserted between husband and wife while it continues. Tucker v. Fenno, 110 Mass. 311. Cormerais v. Wesselhoeft, 114 Mass. 550.

For these reasons, a majority of the court are of opinion that the entry should be

Bill dismissed.

DISSENT BY: Field

DISSENT

Field J.

I am unable to concur with the majority of the court. If this bill cannot be maintained, it is not suggested that the plaintiff has any remedy. The result is, that she has lost her money because she lent it to a partnership of which her husband was a member. It may be assumed that the money lent was the separate property of the plaintiff, by virtue of the statutes of the Commonwealth. These statutes have not authorized a married woman to make contracts with her husband, or to bring suits against him; and her authority, or want of authority, to do either remains as it was before the...