Barker v. Lynch

Taylob, J. We think it is very clear that, upon the evidence introduced in this action, as between Knight and Bernard Lynch, no debt nor-sum of money was shown to be due upon said contract from Knight to Bernard Lynch. On the face of the contract, and by the terms thereof, there is clearly nothing due to Bernard, and we find nothing in the evidence which tends to prove that there has ever been any transfer of the money' due or to become due on said contract from Elizabeth Lynch to Bernard Lynch, and in the absence of any such evidence the money must be due to Elizabeth and not to Bernard. The only evidence offered .which has any tendency to show any such transfer of interest in the contract to Bernard is a written request and a receipt, of which the following are copies: “Ashland, WiscoNsiN, January 6th, 1888. “ To John M. Knight: Any moneys paid by you heretofore or hereafter to Bernard Lynch, my husband, on account of the logging contract I have with you for cutting the timber on section 24, township 17, range 8, Bayfield county, Wisconsin, is and shall be just the same as if paid to • me; and you are authorized to settle with him for all matters connected with that logging contract. “ [Signed] . Elizabeth Lynch.” ° “Ashland, Wisconsin, January 30th, 1888. “ Received of John H. Knight eighteen hundred and one dollars and eleven cents, on account of logging contract for cutting timber on lands in section 24, township 47, range 8. “ [Signed] Bebnahd Lynch.” These papers are entirely consistent with the claim of [629] the appellants that Bernard was acting as agent for his wife in regard to her contract with Knight, and of themselves do not amount to an assignment of the rights of Elizabeth Lynch under the contract to her husband, so as to authorize him to maintain an action in his own name to recover from Knight any money due to Elizabeth on said contract. Upon the testimony in this record it seems to us very clear that it is not shown that Bernard Lynch could successfully have maintained an action to recover from Knight the money due and unpaid by him on said contract. Ordinarily, this fact would defeat the action of the creditors of Bernard in recovering against Knight as garnishee of Bernard. In order to entitle the creditor of Bernard to recover in a case where he himself could not recover against the garnishee, it must be shown that the transaction between the garnishee, Knight, and Elizabeth, the wife of Bernard, was on their part intended to hinder, delay, or defraud the creditors of Bernard, or that the .contract was made for the use and benefit of Bernard. These questions are clearly questions of fact upon the evidence, and not questions of law. That there was any intent to defraud the creditors of Bernard is certainly far from being so clear as to justify a court in determining it as a question of law, especially under our statute, which declares that the question of intent to defraud shall be a question of fact and not of law. Sec. 2323, R. S. The evidence shows that Bernard was entirely willing to have the contract for the logging stand in his name and for his benefit, as it was originally made, and that the change of the contract, making the contract with his wife, was because Knight was not satisfied to have it remain as a contract with Bernard. Clearly, the court erred in directing a verdict on the ground that the contract was made with intent to hinder, delay, or defraud the creditors of Bernard Lynch, [630] Independently of the question of fraud, the court might be justified in'directing a verdict for the plaintiff on the ground that, as Elizabeth Lynch was a married woman, this contract, notwithstanding our laws on the subject of the rights of married women, was void as between her and her husband, and all rights accruing to her under it would inure to the benefit of the husband. From the argument of the learned counsel for the respondent, we are inclined to think it was upon this ground that the learned circuit judge directed the verdict for the plaintiff. We think that, under our statutes and the decisions of this court made in view of them, Mrs. Lynch was competent to make the contract she did, and to enforce the same in all respects for her own benefit, and without her consent her husband could receive no benefit therefrom. Upon the evidence in this case, it cannot be said with any certainty that Mrs. Lynch had no separate estate of her own when she entered into this contract; but, if it be admitted that she had at the time no separate estate, we have held, and must still hold, that a married woman may engage in most kinds of lawful business for the purpose of creating for herself a separate estate, especially if she engages in such business with the consent of her husband. This court, in referring to the laws of this state in regard to the rights of married women, in the case of Bricldey v. Walker, 68 Wis. 572, said: “ These laws were enacted for the very purpose of enabling every married woman, though having no separate estate, to acqume one by her individual earnings, except such earnings as might accrue from labor performed by her for her husband, or in his employ, or payable by him.” And in that case a contract made by a married woman with a firm of which her husband was a member was upheld as a lawful contract, without any evidence that she had any separate estate of her own when she entered into such contract. There is nothing in the nature of this contract which renders it void on the part of Mrs. Lynch. [631] The only other theory upon which the circuit judge could properly direct a verdict in favor of the plaintiff is that, although the contract is made in the name of Mrs. Lynch, and ostensibly for her benefit, yet in fact it was entered into by her for the sole benefit of her husband. That fact was certainly not clearly established by the evidence. If there is any evidence in the case tending to prove that fact, then it should have been submitted to the jury for their determination, and not decided by the court as a question of law. In any view of the evidence, it seems very clear' to us that the plaintiff failed to establish by the evidence facts which entitled him to have a verdict directed in his favor. For the error in directing a verdict for the plaintiff, the judgment must be reversed. By the Court.- — -The judgment of the circuit court is reversed, and the cause is remanded for a new trial.