Leinkauf & Strayss v. Barnes

• Decision Date: 04 February 1889
• Citation: 66 Miss. 207,5 So. 402
• Parties: LEINKAUF & STRAUSS v. LILLIE J. BARNES
• Court: Mississippi Supreme Court

5 So. 402

66 Miss. 207

LEINKAUF & STRAUSS v. LILLIE J. BARNES

Supreme Court of Mississippi

February 4, 1889

FROM the circuit court of Noxubee county, HON. S. H. TERRAL Judge.

The opinion states the case.

Judgment affirmed.

Jno. E Madison, for appellants.

Section 1177 of the code is applicable to other business as well as farming, and the words, "or any of her means," are not to be restricted to things of the same character as those enumerated in the preceding part of the section. It might be plausible to contend that this clause and the words "and to operate and carry on business in his own name or on his own account," refer to the preceding enumeration, but for the concluding language: "But all business done with the means of the wife by the husband, shall be deemed and held to be on her account," etc. These expressions are too general to be restricted by construction to the wife's plantation and the personal property thereon. The intention to include every business is too manifest.

The evil intended to be remedied is the one arising in the case at bar. In case the husband becomes involved, he easily sets up the relation of debtor and creditor between his wife and himself and sells out to her or prefers her in an assignment. In the case of Porter & McRae v. Staten, this court uses the following language:

"By fair and necessary implication the statute secures to creditors the right to hold the wife to answer for all debts contracted in a business conducted by her husband with her means in all cases in which there is not a recorded contract or notice to the creditor." 64 Miss. 421. This and the plain language of § 1177 places the question in this case beyond the range of debate.

The court below held that the section was applicable to the business of merchandising only when the wife actually furnished the goods to be sold. The error is in assuming that the business of a merchant is only to sell goods. Is it not a part of his business to buy, as well as sell? The wholesale dealer, as in this case, generally has a very lively impression of the business of a merchant in buying goods. Is not a merchant engaged in business when using twenty-five hundred dollars of his wife's money in buying five thousand dollars worth of goods, one half cash?

The allegations of the declaration are full and specific, and make a clear case of liability against the wife under the statute. It was error to sustain the demurrer.

Bogle & Bogle, for appellee.

It is not claimed that the wife owned any of the property embarked in the business, or that she was an undisclosed principal in fact; but it is insisted that the statute operates to make her the principal, against her will, and against her consent, simply because she loaned her husband money which was used in his business. We seriously question the power of the legislature to fasten on the wife liability for the debts of her husband under such circumstances; but, whether such power exists or not, we think we are entirely safe in saying it has never been exercised, and never will be. Such a law would be pure confiscation.

Prior to the code of 1880, two evils existed which the legislature attempted to remedy. One was where a merchant, doing business apparently with his own property and on his own account, obtained credit, and afterward, becoming involved in debt, a third party turned up claiming the property, thus defeating creditors. This was attempted to be cured by § 1300. The other evil was where the wife owned a separate estate, managed by the husband, and when debts, contracted for the estate, became embarrassing, it turned out that the husband had rented the property, thus shifting the debts to the insolvent husband. Section 1177 was intended to prevent this. The first mentioned section applies to merchants and traders, and where the use of the property consists in its consumption, such as merchandise. There is no record showing the title, and, therefore, the law conclusively presumes the possessor is owner and makes the property liable for his debts. Section 1177 applies to that class of property where the corpus is not consumed by the use, but an income arises out of which debts are usually paid. The records show the title, and the law fixes liability on the owner for the debts contracted for the benefit of the property. It is impossible, however, for third persons to know whether the possession of the husband is for his own benefit or in right of his wife, and, therefore, this section was intended to make his possession of her property her possession, and his acts in reference to it her acts, but it is confined to property.

These two sections of the code were intended to apply to different classes of cases; but, if the construction contended for by appellants shall prevail, then we have both sections applying to the same class of cases, and with conflicting results. Here § 1300 conclusively fixes ownership of the goods in the husband, and makes them liable for his debts; while § 1177, if applicable, makes the business that of the wife, and makes her liable for the debts.

Under the former code the wife was liable for plantation supplies, but this liability could be evaded by proof that the husband had rented the plantation for that year, and hence § 1177 was enacted to bring forward the old law, and to prevent such renting, unless by writing duly recorded.

In this case the husband owned the business. When he borrowed the two thousand seven hundred and fifty dollars it became his money, and he was debtor, not agent. The statute does not refer to money. "It shall not be lawful for the husband to rent the wife's plantation, houses, horses," etc.

The general term, "any means," following the specific enumeration, applies to property ejusdem generis with that enumerated. Matter of Hermance, 71 N.Y. 487; Hawkins v. R. R. Co., 17 Mich. 62; Bish. on Con. 409.

If a wife lends her husband ten dollars to pay some small bill for merchandise, is she thereby made liable for ten thousand dollars which he subsequently owes in his business? Such a proposition is absurd. Suppose he collects money for her, and uses it in his business, without her knowledge, does this statute make him her agent, instead of debtor, and render her liable for all debts contracted in his business? Is it possible that in this state, where the wife is supposed to be relieved of all disabilities of coverture, she is so situated that the husband may not only squander her money, but, even against her consent, impose upon her liability for his debts? If the confidence of the wife in leading her money to the husband, or his use of it, without her knowledge, in his own ventures, makes her liable for all his debts, it ought to be plainly so "nominated" in the law.

The reasoning of this court in Porter & McRae v. Staten, 64 Miss. 421, agrees with the views we have expressed. It is clearly indicated there that the liability of the wife rests upon her ownership of the property for the benefit of which the debt was contracted. Here the wife had no property, but only a debt against her husband for the money.

OPINION

COOPER, J.

This appeal is from the judgment of the circuit court sustaining a demurrer to the declaration. The facts stated are, that W. O Barnes, the husband of appellee, was engaged in transacting a mercantile business in his own name, and in the course of such business contracted the debt sued on with the plaintiffs; that ...