Horneffer v. Duress , 13 Wis. 603 ( 1861 )

By the Court,

PAINE, J.

This action was brought by the defendants in error against the plaintiff in error, for taking and converting a quantity of wood, alleged to belong to the plaintiffs. The defendant below justified under executions against Bobert Duress, the husband of Bridget Duress, averring that the wood belonged to him.

The plaintiffs offered evidence tending to show that Bridget Duress and Patríele, her son, had been engaged in a partnership together with one Powers, in rectifying and selling liquors; that Powers left the firm, and that the business was subsequently conducted by the plaintiffs, and that the wood in question was bought for the firm. The counsel for the plaintiff in error raises the question whether a married woman could enter into such a contract of partnership, and carry on business in tbe manner testified to. But without determining how far such contract would be binding her or upon other parties with whom she might contract, we will say that if a married woman should invest her own separate property, admitted to be such, in a partnership business to be conducted by her and others, and property were actually bought and delivered to such partners, a mere trespasser, converting it to his own use, could not defend himself by raising any question as to her capacity to carry on such partnership business.

It seems also that the complaint did not allege any value to the wood. And the counsel for the defendant below requested the court to instruct the jury that the plaintiffs could recover only nominal damages, which was refused. The value of the wood was proved, and we think this technical defect in the complaint was properly disregarded by the court. It should have ordered the complaint amended without costs.

But there was one error for which we think the judgment must be reversed. The plaintiff’s case showed a married woman and her son engaged in business together, and the husband and father acting as managing agent. The contest was between the wife and her husband’s creditors. Undoubtedly the case was one which should require the clearest proof on the part of the married woman, that the property was her separate property. Stanton vs. Kirsch, 6 Wis., 338. The proof relied on for this purpose was the existence of the partnership, and the actual transaction of business in the name of the firm, and the statements of some of the witnesses, that the plaintiffs put in some money as capital when the partnership was formed. But where the plaintiff Bridget got her money was not shown, and there was nothing offered tending to show that she had any money or separate property, with the exception of a receipt offered in evidence, purporting to be signed by 0. Hurley, acknowledging the receipt of $3,000 from Robert Duress, in trust for Bridget Duress, and promising to pay the same to Bridget on demand. The receipt refers to an agreement in pursuance of which it was given, which did not appear in the case. And it may be whether, if received, it Rad any tendency to sRow tRat tRe money mentioned in it was Rer separate property as against Rer RnsRand’s creditors. But assuming tRat it Rad, and it certainly may Rave been so regarded by tlie jury, we tRink it was inadmissible without first proving its genuineness. There was nothing offered to show that there was any such person in existence as 0. Hurley. TRe paper being signed by one not a party to the suit, its genuineness should Rave been proved before it was admitted. Otherwise, whenever it became necessary to show that a married woman, or any body else, Rad property, all that would be necessary would be to manufacture fictitious receipts and offer them in evidence. It is true, they might not be very satisfactory without some explanation, but if admissible at all without any proof whatever, they might Rave an improper effect upon the minds of the jury.

Eor the admission of that receipt the judgment must be reversed, with costs, and a new trial ordered.