T. T. Haydock Carriage Co. v. Pier

• Decision Date: 15 October 1889
• Citation: 43 N.W. 502,74 Wis. 582
• Parties: T. T. HAYDOCK CARRIAGE CO. v. PIER.
• Court: Wisconsin Supreme Court

74 Wis. 582

43 N.W. 502

T. T. HAYDOCK CARRIAGE CO.

v.PIER.

Supreme Court of Wisconsin.

Oct. 15, 1889.

Appeal from circuit court, Fond du Lac county.

Edward W. Phelps, for appellant.

Kate Pier, pro se.

TAYLOR, J.

On the 20th of January, 1888, the appellant commenced an action on a promissory note of Bartell Bros., a firm consisting of J. M. Bartell and P. C. Bartell. Judgment was obtained, in said action, against the said Bartells, for the sum of $823.17. At the time said action was commenced, the appellant also commenced a garnishee action against the respondent, claiming that she had property or money in her hands belenging to said Bartell Bros., or to one of them. The respondent answered in said garnishee action, and denied any indebtedness to the said Bartell Bros., or to either of them, and also denied that she had in her possession, or under her control, any real estate, personal property, effects or credits of any description, belonging to the said defendants, the Bartells, or to either of them; and she further answered that P. C. Bartell was doing business as a dealer in sewing-machines, etc., and that on December 22, 1887, the said P. C. Bartell made an assignment to her as assignee for the benefit of his creditors, setting out at length such assignment, and that by virtue of such assignment she had taken possession of the property of the said P. C. Bartell, and was so in the possession at the time the garnishee summonswas served on her. Upon this answer of the garnishee the appellant took issue. The issue between the appellant and the garnnishee was tried by the court and a jury. Upon the trial in the circuit court, it appeared that the respondent had property in her hands, at the time the garnishee action was commenced, appraised at $2,870.32; book-accounts, $617.19. That $739.36 of this property was taken from her possession upon chattel mortgages existing on it at the date of the assignment; and $310 were goods held on commission, which were also taken from her possession. The balance of the goods were sold by her, and that she realized from the goods sold and amounts collected the sum of $606.04. It also appeared that nearly all the property that came to the hands of the respondent was goods which belonged to the firm of Bartell Bros. at the time the note was given upon which the action against Bartell Bros. was brought. The appellant contended, on the trial in the circuit court, that the assignment was made for the purpose of hindering, delaying, and defrauding the creditors of Bartell Bros., and was therefore void; and it was also contended that the assignment was void in law, for the reason that the assignee, at the time the assignment was made to her, was, and still is, a married woman. After hearing all the evidence, the learned circuit judge nonsuited the plaintiff, and rendered judgment against it for costs. From this judgment the plaintiff appealed to this court, and seeks a reversal of the judgment of the circuit court upon the two grounds taken on the trial: First, that the evidence shows that the assignment was fraudulent and void, because made to hinder, delay, and defraud the creditors of the assignor; and, second, that it was void in law, because the assignee was at the date of the assignment, and still is, a married woman.

As we have concluded that a married woman cannot lawfully be an assignee of a debtor under an assignment made for the benefit of his creditors under our statute, we do not feel called upon to express an opinion as to whether the learned circuit judge was justified in nonsuiting the plaintiff on the question as to whether the assignment was void because made to hinder, etc., the creditors of the assignor. It was shown on the trial that the assignee was possessed of a separate estate of her own, that she was an attorney at law, and that she had done business on her own account for several years before this assignment was made. It is contended by the learned counsel for the appellant that the statute under which this assignment was made, evidently contemplates that the assignee shall be a person who can bind himself or herself by his or her personal bond, and that a person who is incapable of binding himself or herself by a personal obligation or bond is disqualified to act as assignee; that an assignment, therefore, to a minor or an insane person would be void; that it is equally clear that a married woman cannot lawfully be appointed assignee, under the statute, unless she can bind herself and her property by the execution of the personal bond required by such statute. We think it very clear that our statute regulating assignments contemplates that the assignee must be a person who is competent to bind himself or herself by a personal obligation such as is required by the law to be given by the assignee. The main object of the statute was to so regulate assignments as to protect the interests of the creditors. Under the common law, and before the legislature intervened to regulate assignments, the crying evil of assignments was that no interest was secured or protected except that of the assignor. Under the present statute, the assignee is required to give a personal bond; and it certainly contemplates that when the bond is given by the assignee, he or she shall be bound by such bond. The material inquiry is whether a married woman can bind herself by a personal bond, given in an assignment proceeding under the statute. On the part of the learned counsel for the respondent, it is contended that she can so bind herself. It is unnecessary to cite authorities to support the proposition that a married woman could not, under the rules of the common law, bind herself by such bond. Is there anything in our statute that has given a married woman the privilege of assuming this responsibility, and subjected her to responsibilities against which the common law protected her? The immunity which the common law gave to the married woman of not being bound by her personal obligations was rather in the nature of a privilege and protection than of a disability, and this court, as well as all others, in giving construction to statutes which are intended to remove the disabilities of married women, has been careful not to construe them so as to remove the protection which the common law afforded; and it has only held that personal contracts shall bind the married woman when they relate to, and are necessary to protect her in the enjoyment of, the benefits of the enabling statutes. These statutes having given the married woman the right to hold, use, sell, and dispose of real and personal property as though she were single, the court holds that she may bind herself by personal contracts in regard to such property. So she, having the power to engage in trade and business, may bind herself in respect to such trade and business. Conway v. Smith, 13 Wis. 125;Leonard v. Rogan, 20 Wis. 540;Beard v. Dedolph, 29 Wis. 136;Meyers v. Rahte, 46 Wis. 655, 658, 1 N. W. Rep. 353;Dayton v. Walsh, 47 Wis. 113, 2 N. W. Rep. 65;Cramer v. Hanaford, 53 Wis. 85, 10 N. W. Rep. 15;Bouck v. Enos, 61 Wis. 660, 21 N. W. Rep. 825;Krouskop v. Shontz, 51 Wis. 204, 8 N. W. Rep. 241;Houghton v. Milburn, 54 Wis. 554, 12 N. W. Rep. 23, and 11 N. W. Rep. 517;Brickley v. Walker, 68 Wis. 563, 32 N. W. Rep. 773. These cases illustrate the extent to which this court has gone in holding the married woman liable upon her personal contracts; but an examination of them will show that the contracts by which she was held personally bound were all such as related to her individual property, or to her earnings, or her lawful business...