Hoge v. Turner

• Decision Date: 12 January 1899
• Court: Virginia Supreme Court
• Parties: HOGE et al. v. TURNER.

32 S.E. 291

(96 Va. 624)

HOGE et al.

v.TURNER.

Supreme Court of Appeals of Virginia.

Jan. 12, 1899.

Fraudulent Conveyances — Witness — Competency op Husband or Wife — Trading as "Agent"—Acts and Declarations of Agent— Presumption of Ownership—Practice—Modification of Instructions.

1. Under Acts 1893-94, p. 722, and Acts 1897-98, p. 753, removing the incompetency of husband and wife to testify for or against each other, except "in any proceeding by a creditor to avoid or impeach any conveyance, gift, or sale from the one to the other on the ground of fraud or want of consideration." and preserving therules of evidence at common law in cases of such nature, it was error to admit the wife of a judgment debtor to testify in an action on her behalf, on an indemnifying bond given to the officer by the judgment creditor of her husband, on the levy of an execution on certain personal property of which she claimed to be the lawful owner, where the question of fraud was raised by defendants' pleas, though her testimony was restricted to the issues in such cause other than that of fraud, as the interest of her husband in such controversy rendered her incompetent.

2. Code 1887, § 2877, provides, inter alia, that if any person transact business as a trader, with the addition of the word "Agent, " and fail to disclose the name of his principal, by a sign placed conspicuously at the house wherein such business is transacted, and also by a notice in a newspaper, or if any person transact such business in his own name, without such addition, all the property and choses in action used in such business shall, as to the creditors of such person, be liable for his debts. Held, that such provision makes all the property, etc., acquired or used in such business, absolutely liable for the debts of such trader, whether contracted in the particular business or not, and without regard to knowledge of the principal, if any, on the part of the creditor.

3. Any one conducting such business in person is not within the statute referred to, and need not comply with its provisions.

4. Though, as a general rule, agency cannot be proved by the declarations or acts of the alleged agent, such declarations as were heard and such acts as were known, without being repudiated, may bind the alleged principal, on the ground of acquiescence therein.

5. In a contest between a wife and the creditors of her husband, the husband is presumed to be the owner of all property acquired, or of which the wife may be in possession, during coverture.

6. Where an instruction, without qualification, was calculated to mislead the jury, it was error to refuse, on the ground that it was tendered too late, a modification, requested during the argument, correctly propounding the law.

Error to circuit court, Augusta county.

Action by Logan Turner, sergeant of the city of Staunton, for the benefit of Jennie Bowers, against Charles E. Hoge and another, late partners, doing business under the firm name and style of Hoge & Hutchinson, on an indemnifying bond taken by plaintiff on levying an execution on a stock of merchandise, under a judgment in favor of defendants and against one George Bowers, the husband of sa'd Jennie Bowers. Defendants interposed eight pleas, as follows: (1) Of conditions performed generally; (2) of non damnificatus; (3) that defendants did indemnify, etc.; (4) special plea of failure to comply with the agency act; (5 and 6) special pleas of fraudulent transfer; and (7 and 8) special pleas of fraud. There were verdict and judgment in favor of plaintiff, and defendants bring error. Reversed.

The first eight assignments of error are as follows: (1) Error in allowing Jennie Bowers, the wife of the execution debtor, to testify as a witness, over defendants' objection to her competency, on any and all points involved in the cause, except on the issues of fraud raised by the fifth, sixth, seventh, and eighth pleas. (2) Error in giving, on plaintiff's motion, the following instruction to the jury: "The court instructs the jury that although they may believe from the evidence in this case that the business conducted at No. 17 West Frederick street, Staunton, Va. was conducted by George Bowers in his own name, as agent, without disclosing his principal, by publication for two successive weeks in a newspaper, and by a sign posted at his place of business, yet if they believe from the evidence in this case that Jennie Bowers was his principal, and that the defendants knew this when the property of the business was levied on and sold, that then the defendants are liable, and the plaintiff is entitled to a verdict." (3) Error in giving to the jury, on plaintiff's motion, the following instruction: "The court instructs the jury that if they believe from the evidence in this case that Mrs. Jennie Bowers was the owner of the stock of goods and the business conducted at No. 17 West Frederick street, and that she conducted said business in person on the premises, then no agent employed by her was required to disclose his principal, by a sign, in letters easily to be read, placed conspicuously at his said house where said business was conducted, or by notice published for two weeks in a newspaper, or otherwise to comply with or conform to the provisions of section 2877 of the Code of Virginia, and the jury must find a verdict for the plaintiff." (4) Error in giving to the jury, on motion of plaintiff, the following instruction: "The court instructs the jury that neither the declarations nor the acts of George Bowers can be considered in this case to prove that he was the agent of his wife, Mrs. Jennie Bowers, to conduct her business in his name as agent, at the Jesser Building, in Staunton, "—the "Jesser Building" being the same building as that referred to elsewhere in the cause as "No. 17 West Frederick Street." (5) Error in refusing to give the following instruction, on request of defendants: "The court instructs the jury that if they believe from the evidence that at the time of the acquisition by the plaintiff, Jennie Bowers, of the property levied on and sold under the execution of Hoge & Hutchinson, her husband, George Bowers was insolvent, then the presumption of law is that he furnished her with the means to purchase or acquire such property, and that such property is therefore subject to be levied on for his debts contracted prior thereto, and that the burden of showing that he did not in fact furnish her with the means to acquire said property is upon the plaintiff to prove affirmatively, by a preponderance of evidence, to the satisfaction of the jury, that he did not do so; and, in considering the evidence adduced by her on that point, the jury must disregard evidence tendered by her on the witness stand, just as if she had not testified at all, her evidence on that point being entirely inadmissible and illegal, "—and in giving in lieu thereof the following instruction: "The court instructs the jurythat it devolves upon the plaintiff to show by satisfactory evidence that the money with which she bought the stock of goods from Wm. E. Craig, trustee, was her own money, and belonged to her separate estate." (6) Error in refusing to give, on request of defendants, the following instruction: "The court instructs the jury that the plaintiff, Mrs. Jennie Bowers, is not a competent witness in this cause, and that, in considering this case, they must entirely exclude all the evidence given by her, and totally disregard the same, and dismiss it from their minds as completely as if she had never testified in this cause at all." (7) Error in refusing to give the following instruction, on request of defendants: "The court instructs the jury that if they believe from the evidence that at the time the execution of Hoge & Hutchinson involved in this cause was levied upon the property at No. 17 West Frederick street, on the 20th day of January, 1897, the execution debtor, George Bowers, was then conducting a store at the said storeroom as agent for his wife, the plaintiff, the said Jennie Bowers, under the style of 'George Bowers, Agent, ' and that he had failed to disclose the name of his principal by a sign, in letters easily to be read, placed conspicuously at the house where such business was conducted, and also by a notice published two weeks in a newspaper printed in the city of Staunton, and that the said property so levied upon was acquired by the said George Bowers, agent, in such business, then they must find for the defendants, notwithstanding they may further believe that said property really belonged to said plaintiff, Jennie Bowers, and had been bought and paid for by her, and though she was bound for all the purchases made and debts contracted by the said Bowers as agent, and that the same was well known to the defendants." And (8) error in refusing to give the following instruction, tendered by defendants during the closing argument of plaintiff's counsel: "The court instructs the jury that though they may believe from the evidence that the plaintiff, Mrs. Jennie Bowers, did not instruct or authorize her husband, George Bowers, to have her licenses transferred to George Bowers, agent, or to have her business advertised as that of George Bowers, agent, yet if they further believe from the evidence that after her said husband had had her licenses so transferred, and had so advertised the business, the plaintiff, Mrs. Jennie Bowers, knew of her husband's action in those respects, and did not correct or repudiate them, then by her silence and acquiescence, after having knowledge of her husband's said acts, she ratified them, and made them just as binding on her as if she had authorized them in advance."

A. C. Braxton, for plaintiffs in error.

Chas. Curry and L. W. H, Peyton, for defendant in error.

RIELY, J. By the common law, husband and wife are incompetent to testify for or against each other. Neither of them is admissible as a witness in a cause, civil or...