Fritchey Lumber Co. v. B. F. Isenberg Milling Co.

19 Pa. Super. 321, 1902 Pa. Super. LEXIS 94

• Court: Superior Court of Pennsylvania
• Decided: February 14, 1902
• Docket: Appeal, No. 48
• Status: Published

Opinions

Opinion by

William W. Portee, J.,

This appeal is from a judgment entered non obstante veredicto after trial of a sheriff’s interpleader to determine the ownership of certain pine logs. The execution was issued upon a judgment against a partnership of which Frank Fritchey was a member. The plaintiff in the feigned issue is Linnie A. Fritchey (the wife of Frank Fritchey), trading as the Fritchey Lumber Company. The testimony of the plaintiff and of her husband was substantially that he (being at the time insolvent) borrowed for her from one, Stoler, the sum of $100. For this the husband gave his duebill, but turned over the money directly to his wife. She applied it to the first payment on account of a purchase by her of a tract of- timber land. She employed her husband’s brother, who acted for her in making the purchase and who subsequently worked for, and was paid by, her for working the timber into lumber. The moneys received for the timber went into the plaintiff’s bank account. The debt to Stoler was paid by lumber delivered to the plaintiff’s husband, who turned over to Stoler an order for moneys due Fritchey from the Broad Top Railroad Company, by whom he was employed. Fritchey denies any participation in his wife’s business, although it appears that he drew checks for her on her bank account, as did also her brother-in-law. The balance of the- purchase money for the timber was paid -out of the moneys realized from the sale of the lumber as was also, apparently, the rent of a sawmill leased by the plaintiff for use in the business. Thus it appeared that a married woman was engaged in a business; that the property levied on, the subject of this controversy, was a part of the assets or profit of that business; that the business was started on a loan procured by the husband for the wife; that this loan was paid off before the levy of the defendant was made; that the wife had no separate estate when she started the business except some household goods; and that her husband had no participation in the profits of the business. These do not purport to be all, but rather all the material, facts exhibited by the plaintiff. They were not contradicted by the defendant, save by proof of alleged declarations by the plaintiff’s bróther-in-law as to the ownership of the timber tract, and on the ground of inconsistent statements by the witnesses. The court below submitted to the jury two matters, namely, (1) whether the business of the Fritchey Lumber Company was actually the business of Mrs. Fritchey; and (2) whether the business of the company was carried on by Mrs. Fritchey collusively for the benefit of her husband and brother-in-law. The jury found for the plaintiff. The charge was adequate.

By the judgment entered non obstante, the court below in effect held that the facts required him to say, (1) that “ all of the money which was put into the Fritchey Lumber Company-was furnished by Frank Fritchey,” which was at most a question for the jury on the testimony, and to add as a corollary, (2) that as between the plaintiff and her husband’s creditors “the business must be regarded as his, and its property was therefore subject to seizure ” on the execution of the defendant. No doubt there was sufficient in the case to send it to the jury on the question of fraud and collusion. The result reached in entering judgment non obstante is not sustainable. It was said nearly ten years ago (see Adams v. Grey, 154 Pa. 261) that it was then time that the profession throughout the commonwealth should understand and appreciate that both the rights and liabilities of married women in this state had been greatly changed and enlarged by the act of 1887. Under the act it had then been already held that a married woman without separate estate might, for the purpose of engaging in business, purchase property wholly on credit and hold the same against her husband’s creditors: Walter v. Jones, 148 Pa. 589. Certainly this right was not curtailed by the act of 1893, which “did not restrict, but rather enlarged the rights of married women conferred by the act of 1887 Pice, P. J., in Frost v. Knapp, 10 Pa. Superior Ct. 301. In the case last referred to, this court held that a married woman has the right to engage in business on her own account as if she were a feme sole, and the proceeds of such business are secure against her husband’s creditors.

In the case before us the plaintiff had no separate estate. She and her husband testified that the money which started the business was borrowed for her by him; that he was not interested in the business; and that she in fact repaid the loan. These matters were at most only for the consideration of the jury in determining the question of fraud and collusion. The verdict may fairly be construed to mean that the business was actually that of the wife, and that there was neither fraud nor collusion. That the wife had no separate estate was not a factor in the case. Error was thus committed in overturning the verdict. The judgment non obstante veredicto is reversed, and judgment is now entered for the plaintiff upon the verdict for the sum of $225, the amount in court representing the goods claimed.