Orr v. Cooledge , 117 Ga. 195 ( 1903 )

Fish, J.

The error assigned in the bill of exceptions sued out in this case is that the trial judge improperly dismissed on demurrer the plaintiff’s petition. The material portions of this petition, as well as the grounds of the demurrer filed thereto, are set forth in the official report.

1. The cause of action upon which the plaintiff relied for a recovery was, in brief, as follows: She entered into a copartnership with the defendants, agreeing on her part “ to contribute to the capital of the business, on or before the first day of January, 1899, the sum of one thousand dollars, ” and to also contribute towards the success of the enterprise the services of her husband. Her interest as a partner in the proposed venture was to be equal to that of each of her copartners, to wit, a one-fourth interest, save in the event one or more of them should elect to acquire a greater proportionate interest by investing in the enterprise additional funds, as expressly provided for by the articles of copartnership. In that event her interest in, and right to share the profits of, the concern was to be measured by the ratio which the amount of cash she agreed to contribute should bear to tbe sum 'total of the amount contributed respectively by her copartners. She actually complied, in part, with her obligations in the premises by immediately putting her husband to work for the firm, and keeping him at work for it up to January 1,1899. She was unable on that day to comply with her obligation to pay over to the firm $1,000 as agreed. Her copartners did not, however, elect to treat her failure to pay as a breach of contract, but agreed to a novation, whereby, in consideration of her continuing to furnish the valuable services of her husband, her relation to the firm as a member thereof was still to •subsist, and the time of payment of her cash contribution was to be extended for six months. Indeed her copartners “ expressed their willingness to indulge her even further, in the event that at the end of six months she was not able to make the contribution contemplated.” The husband continued to work. At the expiration of this extension of time, the money due by her was not forthcoming ; but the other members of the firm chose to waive any right they may have had to take advantage of her failure to pay by forcing her to retire from the partnership. Some time “ during the summer of 1899, petitioner’s husband,” apparently more in his own behalf than as the representative of his wife, “wrote to the defendants from Birmingham, Alabama, that petitioner was still unable to get the money to- put into the concern as agreed, and he was unwilling to work for the company as he had been without compensation. In this letter he proposed that he should be put upon a basis of employment,” receiving from them for his services a portion of the profits of the enterprise. The defendants declined to give countenance to this proposition on his part to quit the employment of his wife and hire himself to them, and “ still insisted upon his going on with his work and devoting his time, skill, and influence to said business,” as theretofore, agreeably to the contract entered into by and between themselves and the plaintiff. The result was that she was enabled to comply with her obligation to furnish to the firm the services of her husband, whom she kept at work for it up to January, 1900, when “petitioner was entirely excluded from said business.” The defendants refuse to account to her for her share of the profits thereof, or to come to any settlement with her.

It is to be observed that the payment by the plaintiff of her contribution of $1,000 was not, under the contract as originally framed or as subsequently modified, a condition precedent to her becoming a member of the partnership. On the contrary, thp partnership was formed and entered into active operations “about the first of October, 1898,” the plaintiff immediately turning over to the firm, as her proportionate part of the assets upon which it was to commence business, the identical salesman whom she had agreed to at once invest in the enterprise. By so doing, her status as a partner became fixed early in October, 1898. Under the agreement whereby the partnership was formed, she was not called upon to further contribute to its capital until January 1 of the following year, when she was to pay over to the firm $1,000 in cash. By failing to do so, she on that day for the first time became in default. If time was of the essence of the contract, the defendants might have exercised their right to then rescind it, because of her breach thereof, accounting to her for her share of such profits, if any, as had up to that time been realized. They did not, however, elect to treat the contract as rescinded, but chose to regard it as still subsisting, retaining and using the salesman she had furnished to the firm, and holding her to her obligation to pay to it her cash contribution of $1,000. Doubtless it is true there was po consideration moving to them for their agreement to extend the time of payment of this sum for six months; but it is equally true that she was not released from her obligation to pay that amount, as per her original undertaking. In other words, she was not only permitted to retain her status as a member of the firm, but was granted indulgence for which there was no consideration. She had partially performed an executory contract, and was, on the date last mentioned, as much a member of the firm as any of the defendants. Though she made default in the payment of the $1,000, her status as a partner could not be affected save by an election on their part to treat that contract as rescinded. They could not so treat it and at the same time hold her to her obligation to fully perform it by paying to the firm in cash that amount. By electing to regard the contract as still binding on all parties thereto, the defendants placed the plaintiff in the situation of a debtor liable to suit as upon a demand past due and unpaid. If for any reason they deemed it inexpedient to attempt by legal process to enforce this demand, it was their right to insist that her share of the profits of the business be applied to the satisfaction of her indebtedness, until it became fully discharged. They could not, however, successfully maintain the position that, while bound to comply with the obligations she had as a partner assumed, she had no right as such to share in the profits. Nor, having once made their election to hold her to the contract, could the defendants thereafter claim any right to treat the contract as rescinded because of her failure to pay such demand, and force her retirement as a member of the partnership. In January, 1900, they undertook to exclude her from further participation in the fruits or labors of the enterprise. She then ceased to be a partner, not because they had the right to terminate her connection with the firm, but solely by reason of her election to treat the partnership as having been dissolved by their action in the premises. They now hold against her a claim arising out of her failure to pay her cash contribution of $1,000. She has against them a claim based on her undoubted right, as a partner, to share in the profits realized from the business up to the time her connection with the firm was severed. There can and should be had an accounting and settlement between the plaintiff and the defendants.

2. We quite agree with counsel for the defendants in error that “a wife is not, inlaw, entitled to control the services of her husband.” Not being his legal custodian, she can not, of course, by a contract to which he is not a party and to which he does not assent, apprentice him to another. But it by no means follows that, in this State, a married woman is under any legal disability to enter into a contract whereby, “ as consideration for an interest by her in a partnership,” she obligates herself to. render to the firm services to be performed by her own or another’s husband, in the capacity of a commercial drummer. It does not appear, as in the case of Pitts v. Allen, 72 Ga. 69, that the parties to the contract contemplated a violation of the constitution by stipulating for and bringing about a condition of peonage affecting a third person of full age. Presumably, such “involuntary servitude” as the plaintiff’s husband was subjected to grew wholly out of the marital relation existing between himself and her, and in no way out of the contract to which she and the defendants were parties. As they received the benefit of the services performed by her husband in her behalf, they are in law accountable therefor, unless they can show that the agreement entered into is, as being contrary to public policy, or for some equally good reason, void and unenforceable.

3. There is clearly no merit in those grounds of' the demurrer wherein the plaintiff’s petition is attacked for duplicity in pleading. “A declaration'is duplicitous when it contains in the same count more than one fact, or set of facts, for the recovery of a single demand, any one of which would justify the recovery.” 7 ‘Enc. PI. & Pr. 237. The plaintiff relies for a recoveryupon a single “ set of facts.” She bases her cause of action upon one, and but one, theory, viz., that the defendants are liable to account to her, as a partner, for her share of the profits of a business enterprise, realized up to the time her connection with the partnership was severed. She could not, of course, also introduce into her petition and rely on the inconsistent theory, supported by the allegation’ of a different “ set of facts,” that she made a contract with the firm by the terms of which she was, instead of looking to the profits of the business for compensation, to receive the value of the services performed by her husband in her behalf, irrespective of whether any profits were or were not realized out of the business venture. Pitts v. Smith, 108 Ga. 37; Seifert v. Sheppard, 111 Ga. 814. True, in the 11th paragraph of her petition she says, in connection with the allegation that up to Januáry, 1900, she was regarded by the defendants “as a partner in said business,” (1) she “is entitled to her share of the profits as such;” and (2) if this be not true, she “is entitled in equity and law to the value of the services of her said husband, rendered on her behalf.” This, however, amounted to no more than an assertion on the part of the pleader of a bare conclusion with regard to the measure of the recovery in money the plaintiff was entitled to, in view of her interest, as a partner, in the profits of the enterprise. St. John v. Leyden, 111 Ga. 155. An allegation with respect to, or a prayer for, alternative relief or relief to which the plaintiff is not entitled, if based upon a consistent statement of a single “set of facts,” can not properly be made the subject-matter of a charge of “duplicitous” pleading.

It may have been somewhat inconsistent to assert that the plaintiff’s recovery was to be measured by the value of the services performed by her husband, when, by the very terms of the contract set up, she could not possibly have hoped to receive any compensation whatever for such services save in the event the venture proved a success, and then only by way of participation in such profits as were actually realized. But, if so, the defendants should, by special demurrer, have directed their objections to any such apportionment as the plaintiff’s share in the profits of the' enterprise. As no such point was made, we make no direct ruling thereon. We do, however, mean to be understood as holding that a distinction is to be drawn between mere useless pleading and that which may appropriately be styled duplicitous.

4. The contention set forth in the last ground of the demurrer was, that, “taking all the allegations of the petition together, it is not possible to tell whether it was the wife, or the 'husband, or both, or neither, who was a member of the partnership. ” There does occur, in the 4th paragraph of the petition, the assertion that “ he faithfully performed his duties as a member of said copartnership, ” etc. But had this really trifling incongruity in her pleadings been, as it was not, specially pointed out by the defendants, it could readily have been cured by appropriate amendment. The pleader certainly made a bona fide effort to “ set forth the cause of action in orderly and distinct numbered paragraphs, as required by” the Civil Code, § 4961, and the result of this effort should, we think, be regarded as a substantial compliance with the provisions of that section. If literal compliance therewith was not also attained, in point of fact or in the-opinion of counsel for the defense, special attention should have been called to the precise spots at which the defendants desired the plaintiff to dissect and add addi-' tional numbers to the allegations of her petition. That it was inaccurately styled an “ equitable petition,” and contained a useless prayer for general relief, afforded no reason for dismissing it on demurrer, if (as we have no hesitation in holding is true) it plainly and fully disclosed a state of facts entitling her to the special relief sought. Malone v. Robinson, 77 Ga. 719. Nor was it necessary to attach “ a copy of the alleged written agreement mentioned in the 2d paragraph of the petition,” or with more particularity to “ set forth the entire substance thereof.”

Judgment reversed.

By five Justices.