Haggett v. Hurley

• Decision Date: 28 May 1898
• Citation: 40 A. 561,91 Me. 542
• Parties: HAGGETT v. HURLEY et ux.
• Court: Maine Supreme Court

40 A. 561

91 Me. 542

HAGGETT

v. HURLEY et ux.

Supreme Judicial Court of Maine.

May 28, 1898.

(Official.)

Exceptions from supreme judicial court, Knox county.

Action by John W. Haggett against William P. Hurley and Frances E. Hurley. Verdict for plaintiff against Frances E. Hurley, and she excepts. Exceptions sustained.

This was an action of assumpsit on account annexed for a quantity of kiln wood. The writ was against William P. Hurley and Frances E. Hurley, who are husband and wife, as co-partners under the firm name and style of the Rockland Lime Company. Both defendants seasonably filed their affidavits denying the partnership alleged in the writ. Before trial William P. Hurley became defaulted, and the defendant Frances E. Hurley pleaded the general issue.

At the trial the plaintiff contended, and introduced testimony which he claimed tended to prove, that when his account accrued, Frances E. Hurley, the defendant, was a co-partner with her husband, William P. Hurley, in the business of manufacturing lime, and that the wood charged in the account annexed to the writ was sold by him to said co-partnership. The defendant Prances E. Hurley denied that she was such copartner, and contended that the wood charged in the account was sold to her husband, William P. Hurley, individually.

The defendant Frances E. Hurley requested the presiding justice to instruct the jury that the defendant, being a married woman, could not lawfully be a co-partner in said business with her husband, said William P. Hurley.

The presiding justice refused to give such instruction. The verdict was in favor of the plaintiff and against the defendant Frances E. Hurley.

To such refusal to instruct the defendant Frances E. Hurley took exceptions.

C. E. & A. S. Littlefield and Mervyn Ap Rice, for plaintiff.

W. H. Focler and J. E. Hanley, for defendant.

EMERY, J. The important and decisive question is whether a married woman can enter into the relation of a business partnership with her husband, and thus subject herself and her separate estate to liability for the partnership debts contracted in the name of the partnership. The plaintiff, of course, concedes that the affirmative of this question is without support from the common law, and must be based solely on some enabling statute. He contends, however, that it is fully sustained by the statute, Rev. St. c. 61, § 4, the full text of which is as follows:

"Sec. 4. A husband married since April 26, eighteen hundred and fifty-two, is not liable for the debts of his wife contracted before marriage, nor for those contracted afterward in her own name, for any lawful purpose; nor is he liable for her torts committed after April twenty-six, eighteen hundred and eighty-three, in which he takes no part; but she is liable in all such cases; a suit may be maintained against her, or against her and her husband therefor; and her property may be attached and taken on execution for such debts and for damages for such torts, as if she were sole; but she cannot be arrested."

The "all such cases" in which she is by the statute made liable are three: (1) "Her debts contracted before marriage," (2) "her debts contracted afterward [after the marriage] in her own name," and (3) "her torts committed after April 26, 1883, in which her husband took no part." The statute thus makes a distinction between her debts contracted before and those contracted after marriage. As to the former, she is made liable without restriction; as to the latter, her liability is confined to those contracted "in her own name." This phraseology alone at the outset should make the court hesitate to declare that she is liable for a debt contracted after marriage, not by her in her own name, but by the partnership in the partnership name. The intention of the legislature to subject her and her separate estate to such a liability is not clearly apparent from the statute in its present form.

The plaintiff, however, contends that the language of the present statute is but a consolidation of St. 1866, c. 52, which reads as follows: "The contracts of any married woman, made for any lawful purpose, shall be valid and binding, and may be enforced in the same manner as if she were sole." This statute, read by itself, may seem very broad and inclusive. Read in connection with the whole body of the law, it will seem less so. For instance, the statute declares in the most unlimited terms that her contracts "may be enforced in the same manner as if she were sole," yet her husband cannot enforce her contracts with him in any manner. Hobbs v. Hobbs, 70 Me. 381. Again, a contract to marry is ordinarily for a lawful purpose, but this statute would not empower a married woman to make such a contract.

No single statute should be interpreted solely by its own words. Upon enactment it becomes a part of, and is to be read in connection with, the whole body of the law. Its interpretation is to be in the light of the general policy of previous legislation and of the long-established principles of law and equity. There is a presumption that by the new enactment the legislature intended some progress along the line, and did not intend any reversal, of such established policy and principles. No new statute will be construed as intending such a reversal unless that intent unmistakably appears. Landers v. Smith, 78 Me. 212, 3 Atl. 463; Cummings v. Everett, 82 Me. 260, 19 Atl. 456.

That, under the statute of 1866, a married woman may make a contract with her husband, need not be questioned here. That such an authority to make contracts includes the power to enter into the relation of a business partnership with her husband, so as to subject herself and her separate estate to partnership liabilities, is more questionable. A business partnership between husband and wife is scarcely within the strict letter of the statute. The term "contract," in its ordinary legal sense, implies two opposite parties, or two opposite sets of parties. Each has in the subject-matter of the contract a right distinct and different from that of the other. Indeed, so marked is the difference, the right of the one is the duty of the other. If one is the vendor, the other, as to the same subject-matter, is the vendee. If one is bailor, or employer, or creditor, the other is bailee, or employe, or debtor. Again, a legal contract implies a right of action at law for its breach. The law of contract was first developed through the allowance of actions for the breach. A right of action is often the test of the existence of a legal contract. Without such right it is difficult to conceive of a binding contract. Neither in a contract nor in the part ownership of property is there any idea of community of interest, nor any idea of an entity apart from the individual contractors or owners. The right or interest of each part owner is separate and distinct from that of the others.

Partnership is often called a contract, as marriage is often spoken of as a contract; but it is rather a relation, a status, somewhat as marriage is a relation or status. T. Pars. Partn. § 101.

In a partnership there are no opposite parties with separate and different interests in the subject-matter of the partnership. There is a community of right and interest. Neither partner owns any proportional part of any article of partnership property. Each has dominion over the whole article, and over the entire partnership property. Upon the death of either partner this dominion remains in the survivors. So long as the partnership continues, no right of action at law exists between partners as to any partnership property or transaction. Much like marriage partners, business partners are left to adjust themselves to one another as best they can until they call upon the courts to dissolve the relation and administer the estate. Again, in a partnership there is a notion of an entity apart from individual partners. In the Roman law the partnership was known as "societas." There is individual property and partnership property. A partner may owe the partnership and vice versa. A partnersnip usually has dealing and keeps accounts with each partner. In those jurisdictions where the Roman law is the basis of the jurisprudence, the entity of the partnership is frankly recognized, and actions are allowed between the partner and the partnership. Succession of Pilcher, 39 La. Ann. 362, 1 South. 929; Navigation Co. v. Agar, 14 Fed. 615.

In common-law jurisdictions this entity is acknowledged, at least in equity, and to some extent at law, in spite of the technical rule that no action at law can be maintained between a partner and a partnership. Pooley v. Driver, 5 Ch. Div. 458; Curtis v. Hollingshead, 14 N. J. Law, 402, 410; Walker v. Wait, 50 Vt. 668.

As to the character of the partnership relation, see, also, Dwinel v. Stone, 30 Me. 384; Woodward v. Cowing, 41 Me. 9.

It seems apparent that there is much difference between the partnership relation and the ordinary contract. So far as partnership is a contract, it is sui gener is, and is not necessarily, or even ordinarily, brought to the mind by the use of the term "contract." the legislature, in using the word "contract" in this statute of 1866, without further definition or expression, has not, we think, expressed in terms an intent to authorize a married woman to enter into a business partnership with her husband. But, however unrestricted the term in the original statute, it should be noticed that in the revision (Rev. St. e. 61, § 4) the term is expressly restricted to contracts in her own name. This restriction clause would seem to exclude contracts made in the name of the partnership, or in any other name than her own. The plaintiff's proposition certainly falls outside of the strict letter of the present statute.

Is such an authority within the spirit c the statute?

To determine this question we shall con sider the rules and reasons of the anterior law, the...