Gilkerson==Sloss Commission Co. v. Salinger

• Decision Date: 04 June 1892
• Citation: 19 S.W. 747,56 Ark. 294
• Parties: GILKERSON--SLOSS COMMISSION CO. v. SALINGER
• Court: Arkansas Supreme Court

19 S.W. 747

56 Ark. 294

GILKERSON--SLOSS COMMISSION CO. v. SALINGER

Supreme Court of Arkansas

June 4, 1892

APPEAL from Monroe Circuit Court, GRANT GREEN, JR., Judge.

Judgment affirmed.

Ewan & Thomas and W. S. McCain for appellants.

The common law restrictions have been removed by statute, and under our present laws there is no reason why a husband and wife cannot form a partnership. Mansf. Dig. sec. 4625; 30 Ark. 727; 43 id. 212; 122 N.Y. 308; 3 Biss. 405; 51 Wis. 204; 1 Lindley on Part. * 124, 210; 9 Neb. 16; 49 Ark. 430; 52 id 237.

W. F Hill for appellee.

A married woman cannot be held responsible for the debts of a firm composed of herself and husband as mercantile partners. 29 Ark. 346; 9 Am. & Eng. Enc. Law, p. 794; Harris, Cont Mar. Women, sec. 582; 30 Ark. 17; 30 id. 678; 29 id. 207; 43 id. 212, 217; 91 Ind. 384; 73 Mich. 146; 16 Am. St. Rep. 572; 3 Allen, 127; 5 id. 460; 140 Mass. 521; 44 Ohio St. 192; 54 Tex. 16; 30 Md. 402; 23 Fla. 83; 20 W.Va. 571; 73 Mich. 35; Harris, Cont. Mar. Women, sec. 618.

HUGHES J. HEMINGWAY, J. dissents.

OPINION

HUGHES, J.

The question is presented by a demurrer which the court below sustained to the following complaint:

"The plaintiff, Gilkerson-Sloss Commission Company, a corporation incorporated under the laws of Missouri, doing business at St. Louis, state that Louis Salinger died on the 26th day of November, 1890; that, at the time of his death and for five years previous thereto, the defendant, Lena Salinger, was the wife of said Louis Salinger; that, for some time previous to January, 20, 1888, the defendant and one William Hooker were partners in trade, under the firm name of William Hooker & Co., doing a general mercantile business at Brinkley, Ark. and on said 20th day of January, 1888, said William Hooker sold and transferred all his right and interest in the property and assets of said firm of William Hooker & Co. to said Louis Salinger, and thereby said Louis Salinger and the defendant, Lena Salinger, became jointly interested in the ownership of said partnership property, and said Louis and Lena then and there agreed to adopt the firm name and style of L. Salinger & Co., and to carry on and continue said mercantile business as partners with each other, and they did adopt said name and style of L. Salinger & Co., and did, pursuant to such partnership agreement, carry on such business from the said 20th day of January, 1888, until the day of said Louis Salinger's death, to-wit, November 26, 1890, and while such partnership business of L. Salinger & Co. was being carried on, to-wit, during the year 1890, the plaintiff sold and delivered to L. Salinger & Co. goods, wares and merchandise to the amount of $ 1,260.36, for part of which said L. Salinger & Co. executed to plaintiff two promissory notes. An itemized statement of plaintiff's account against said L. Salinger & Co., including the amount of said notes, together with the notes, is herewith filed, showing all credits to which they are entitled and leaving a balance of $ 571.59 due and unpaid, to plaintiffs. No part of said indebtedness has been paid except as credited on said statement."

Can a married woman become the partner of her husband in a mercantile business?

In many of the States it is held that she may, under statutes enlarging the powers of married women and removing in part their disabilities at common law. It is so held in Suau v. Caffe in 122 N.Y. 308, 25 N.E. 488. But the weight of authority is that she cannot. At common law the legal existence of the wife was merged in that of the husband, and they could not contract with each other.

Section 7 of article 9 of the constitution of 1874 provides that "the real and personal property of any femme covert in this State acquired either before or after marriage, whether by gift, grant, inheritance, devise or otherwise, shall, so long as she may choose, be and remain her separate estate and property and may be devised, bequeathed or conveyed by her the same as if she were a femme sole, and the same shall not be subject to the debts of her husband."

It has been held that under this section a married woman may convey her separate estate, and acknowledge the execution of a deed for registration as a femme sole. Roberts v. Wilcoxson, 36 Ark. 355. She cannot, however, make an executory Contract to convey land which will bind her or her heirs. Felkner v. Tighe, 39 Ark. 357; Chrisman v. Partee, 38 Ark. 31.

By section 4625 of Mansfield's Digest it is provided that "a married woman may bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account; and the earnings of any married woman from her trade, business, labor or services, "shall be her sole and separate property, and may be used and invested by her in her own name; and she may alone sue or be sued in the courts of this State, on account of the said property, business or services."

Under similar statutes, it has been held, by some courts, that a married woman could not become the partner of any one in business. In Abbott v. Jackson, 43 Ark. 212, Judge Eakin said: "It is well settled, too, that a married woman under such statutes as that of April 28, 1873, can form a partnership as a sole trader with a third person other than her husband." But it has not been heretofore determined expressly in this State that a married woman can or that she cannot enter into partnership with her husband.

In Countz v. Markling, 30 Ark. 17, it was held that a judgment by confession rendered against the husband in favor of the wife is void, and will be quashed on certiorari. This was on the ground of the legal unity of husband and wife and the inability of the wife to sue the husband at common law. In Pillow v. Wade, 31 Ark. 678, it is held that husband and wife are incapable of contracting with each other.

Under a statute similar to ours, it is held, in Haas v. Shaw, 91 Ind. 384, that a wife cannot form a partnership with her husband. See also Lord v. Parker, 3 Allen 127; Plumer v. Lord, 5 Allen 460; Speier v. Opfer, 73 Mich. 35, 40 N.W. 909; Harris, Contracts of Married Women, sec. 618; Mayer v. Soyster, 30 Md. 402; Carey v. Burruss, 20 W.Va. 571; De Graum v. Jones, 23 Fla. 83. ^[*]

In view of the legal unity and identity of husband and wife at common law, and the wife's incapacity to sue the husband at law, and the rulings of our court upon the incapacity of the wife to contract with her husband, we are of the opinion that the wife under our statute cannot form a partnership with her husband. As the credit in this case was given to the firm of which she could not be a member, and as she is sued as surviving partner of that firm, there can be no recovery against her in this action.

The judgment is affirmed.

DISSENT BY: HEMINGWAY

HEMINGWAY, J. I am constrained to record my dissent from the decision in this case, and from much that is said in the opinion by way of argument. I am of opinion that, under the constitution and laws of Arkansas, a married woman is, as to her separate personal property, clothed with...