King v. Bird

• Citation: 85 Iowa 535,52 N.W. 494
• Parties: KING ET AL. v. BIRD, (BIRD ET AL., INTERVENERS.)
• Decision Date: 24 May 1892
• Court: United States State Supreme Court of Iowa

85 Iowa 535

52 N.W. 494

KING ET AL.

v.BIRD, (BIRD ET AL., INTERVENERS.)

Supreme Court of Iowa.

May 24, 1892.

Appeal from district court, Woodbury county, C. H. LEWIS, Judge.

Plaintiffs, having a judgment against defendant, C. B. Bird, garnished J. H. Strong and H. Balcom, as supposed debtors of C. B. Bird. They answered, showing an indebtedness from each in the sum of $250 to the firm of Bird & Selmser, real-estate brokers, for commissions. By stipulation the $250 owing by Mr. Balcom was released to Mr. Selmser, and the $250 owing by Mr. Strong was paid into court to abide the result of this litigation. The firm of Bird & Selmser and Mrs. E. O. Bird intervened, claiming that E. E. Selmser and Mrs. E. O. Bird composed said firm of Bird & Selmser, and that Mrs. E. O. Bird, as a member thereof, was entitled to said $250. Appellants' claim is that C. B. Bird was the real member of said firm; that because of his insolvency the name of his wife was used for the purpose of placing the interest of C. B. Bird in said firm beyond the reach of his creditors. The case was tried to a jury, and verdict and judgment in favor of E. O. Bird. Plaintiffs appeal.Strong & Owen, for appellants.

Marks & Mould, for appellees.

GIVEN, J.

1. There is but little question, if any, as to the facts. The contention is rather as to the conclusion to be reached from the facts. Some time previous to the transaction under notice, C. B. Bird had failed in business. His property was taken by his creditors, and he was left insolvent, and in debt to the plaintiffs and others. The homestead was all that remained to him and his wife. Since his insolvency they have carried on business under his supervision in the name of the Bird Manufacturing Company, of which they say Mrs. Bird is the sole owner. January 1, 1890, the firm of Bird & Selmser was formed under an agreement in writing: “By and between C. B. Bird, agent, * * * and E. E. Selmser, * * * in the business of a general real-estate exchange and loan brokers.” This agreement was signed, “Charles B. Bird, agent for E. O. Bird. E. E. Selmser.” The negotiations leading to this agreement were between C. B. Bird and E. E. Selmser alone. Mrs Bird, though at the time in the city and within easy reach, was never seen or consulted by Selmser. Selmser testifies that he would not go in with C. B. Bird, because he knew that he was insolvent, and could not pay his debts. Mrs. Bird testifies that the reason why the partnership was in her name was that Mr. Bird could not do business in his own name. C. B. Bird testified that the partnership was in her name, “because my time and services belonged to Mrs. Bird. They have belonged to her since I gave them to her in 1885, soon after my business failure. I work for Mrs. Bird. She pays me whatever I take out. My payment rests in my discretion.” The only capital put into the business of this firm was some office furniture, and the payment of $50 office rent by check of the Bird Manufacturing Company. The business of the firm was conducted solely by Mr. Bird and Mr. Selmser, Mrs. Bird taking no part therein. During the same time Mr. Bird was managing the business of the Bird Manufacturing Company, devoting his whole time to that and the business of Bird & Selmser. Mr. Bird never rendered any statements or otherwise accounted to Mrs. Bird concerning the businessin his charge, or the amounts taken by him for his own use, and no accounts whatever were kept between them. Mrs. Bird testifies as follows: “I suppose we are worth $40,000 or $50,000. We had only a little at first, at the time Mr. Bird took charge of my business.” It does not appear that either...