HART et al. v. BOWEN, 86 F. 877

PARDEE, Circuit Judge, after stating the issues and proceedings as above, delivered the opinion of the court The plaintiffs in error complain in their first assignment of error that the court below erred in reopening the case of the plaintiffs after they had formally closed their case, and after counsel for the defense had opened the case for the defendants, and in thereafter permitting the plaintiffs to offer further evidence.

The bill of exceptions upon which this assignment is based shows the following proceeding: “The counsel for plaintiff, after offering evidence, had formally announced that he had closed the case of plaintiff, whereupon counsel for defendant proceeded to open the case of defendant by addressing the jury, explaining the points on which he relied, and facts which he expected to prove, and, having closed his statement, was about to proceed to offer his evidence, when his honor, the judge, suspended the proceeding, and ordered the jury to retire; that, after the jury retired, his honor, the judge, addressed the counsel, and said to. the counsel for the plaintiff that he had failed to offer any proof of the paraphernality of the wife’s claim herein sued on, and inquired whether he desired to administer such proof; that thereupon, after some discussion, the counsel for plaintiff expressed his desire then to offer such proof, and applied to he permitted to do so; that thereupon the counsel for defendants objected to the granting of the said application, on the ground that plaintiffs had formally closed their case, and that counsel for defendants had opened the case of defendants and that plaintiffs could offer no further •evidence, except in rebuttal of testimony which might be offered by defendants; that his honor, the judge, overruled the said objections, stating that it was a matter within his discretion; and that, if he should sustain such objections, it would furnish grounds for the granting of a new trial, and he therefore granted the application of counsel for plaintiff, and ordered them to proceed with the offering of their testimony.” We understand it to be well settled that the order in which parties shall be permitted to offer their evidence in the trial of a case before a jury is a matter within the sound discretion of the trial judge.

The facts recited in the bill do not show any abuse of such .sound discretion, nor any resulting injury to the plaintiffs in error. The second assignment of error is that the court erred in charging the jury, and refusing each and every one of the 23 special charges stated at length in the hill of exceptions No. 2.

The hill of exceptions No. 2 does not show any charge to the jury given by the trial judge, but does show that, after the plaintiffs and defendants had closed the case, and the same was about to be submitted to the jury, the court refused to give as special charges to the jury some 24 distinct propositions of law, many based on cited textbooks and adjudged cases, but not based on any evidence tending to show that any one of the propositions suggested was applicable to the facts in the case. It is plain that this assignment of error cannot be considered.

The fourth assignment.of error complains that the court entered judgment in favor of the plaintiffs against the defendants. This assignment is too general to be noticed. There remains the third assignment of error, which complains that the trial judge stated to the jury that the evidence in the case established nothing that sustained any defense to the claim of plaintiffs, and directed the jury to find a verdict for-the plaintiffs. This assignment is not in pursuance of our rules.

It is too general and indefinite; and, but for the briefs of counsel, we should be at a loss to know the specific error or errors presented for review. Sooner or later some important case that should be reversed on ■error will be affirmed simply because counsel will not heed the rules of this court in regard to pointing out in the assignment of errors the specific errors on which they rely. The general ruling complained of is shown by a bill of exceptions, to which is attached all the evidence adduced in the case, from an examination of which we find the material facts proved to he as follows: In July, 1885, R D.

Bowen was employed by the firm of E. J. Hart & Co., and continued with that firm, occupying different positions, until March 15, 189C. At the beginning of his employment said firm was composed of E. J. Hart, Sr., and E. J. Hart, Jr., who continued to constitute the firm until the death of Hart, Sr., in March, 1895. Up to the death of E. J. Hart, Sr., no agreement was ever made as to the amount of salary to be received By Bowen, although many efforts were made from time to time by Nr. ‘Bowen to have a. definite understanding, and Lave Ids salary fixed. E. J.

Hart, Sr., would, however, always put the matter off, saying he would arrange it later, and that Bowen could draw' what money he needed. The settlement of the matter was thus continually postponed, and up to the death of Hart, Sr., Bowen’s salary had never been agreed upon. After the death of Hart, Sr., Bowen, unwilling that his affairs should remain longer in this uncertain state, renewed his efforts to have his yearly salary fixed from the time he went into the employment of the ñrm. The business was still being conducted in the name of E. J.

Hart & Co., announcement being made about two days after the death of Hart, Sr., in the public press and in a circular letter that the death of Hart, Sr., would not interrupt the firm’s business, and E. J. Hart, Jr., the surviving partner, and one of the executors of Ms father’s will (his mother and one of his sisters being co-executors), was then in charge. After repeated conferences between Bowen and E. J. Hart, surviving partners, executor, and heir, Dr. John B.

Hart and Walter Jewell, also heirs, defendants'herein, a settlement was made on July 26, 1895, by which Bowen was allowed for his salary from August, 1885, up to July 25, 1895, 833,950, and also $5,590.60 amount advanced by him for account of the firm, aggregating $39,540.60, which, being credited to Ms account, gave him a net credit on the books of (he firm of about $11,000. Until the latter part of February, 1896, Bowen had no intimation that this settlement would be questioned by any one. E. J. Hart, Jr., then told him that some of his father’s heirs were making complaint about the settlement.

They had all known of the self lenient since, the early part of the fall of 1895. Before Bowen received credit for the sum allowed by this settlement his account appeared to be about $14,000 overdrawn. This was due to the fact that during the whole term of Ms employment he had been credited with only about $500 for some years, $600 or $700 for others, and $1,200 and $1,500 for other years, and never more than $1,800 for any year; and he had not been credited with several ihousand dollars charged to his account, hut which he had expended for the firm’s benefit.

The entries of the credits for salary were made, however, pro forma, and only for the avowed purpose of enabling the firm to balance the books and were not considered as binding upon Bowen or as fixing his salary. In order to keep the books straight, some sort of an entry had to be made, and these pro forma entries were resorted to, and Bowen was permitted to draw money as he needed it, until his salary should be fixed.

For several years prior to the death of Hart, Sr., and up to the date of settlement, Bowen had been general manager of the firm, and for this period he was allowed by the settlement $4-,200 a year, and it was agreed that this salary should continue, and that be was to be paid $350 a month. Bowen remained with the firm under this contract for seven and a half months; but, while he was paid and charged with that sum every month for seven months, they credited him with only $150 a month. Tie was sent to New York in the fall of 1895 for the purpose of borrowing for tbe firm $55,000.

To accomplish this, he was detained in New York over two months. He paid out of his own pocket all the traveling expenses of this trip, and all his expenses during his stay in New York, but E. J. Hart has refused to reimburse him, or to allow him credit therefor.

Although the firm credited him with.only $150 a month for seven months ($200 a month less than he was entitled to), and gave him no credit for the half of March, 1896, making a total shortage in credits due on his salary of $1,575, and the firm entered nothing to his credit for the expenses of his trip to New York, which probably exceeded $1,000 (he was not allowed under defendants’ objections to prove the amount), the firm’s account against him shows an indebtedness of only $2,400.

Prior to the institution of this suit, Bowen, hearing that Hart claimed he was indebted to the firm in the sum of $3,000, repeatedly demanded his account from Mr. Hart, and wrote him two letters requesting the rendition of his account, stating that, if he owed the firm anything, he would pay it. He never got the account. • Hart says he has no recollection of receiving these letters, but letter-press copies of them were introduced in evidence, and the witness who delivered them testified that he left one at the firm’s office, and gave the other to Mr. Hart personally at his home.

In 1893, upon the solicitation of the firm, who offered to pay her 6 per cent, interest on her deposits, Mrs. Bowen, the plaintiff below, and in her own right possessed of separate property and funds, opened an account with the firm by making a deposit of $1,200. She continued from time to time to make other deposits of her own moneys, and from time to time, as she wished, drew out such sums as she needed. The firm acted as her banker, and kept her account separate and distinct from her husband’s, and regularly allowed her interest on her deposits, always treating and recognizing her as the owner of these funds.

When Hart, Sr., died, in March, 1895, she had to her credit $5,157.74. At this time, Bowen, according to the firm’s account with him, appeared to owe $9,497.62, and he had for years appeared to be a debtor on this account. Nevertheless the firm .had always paid Mrs. Bowen interest on her account. After the death of E. J. Hart, Sr., Mrs. Bowen continued to make deposits with the firm as before, and on July 25, 1895, the date of the settlement with Bowen, the firm owed her $8,122.13. When R. D.

Bowen’s account was credited with the amount allowed on that settlement of July 26, 1895, he became a creditor for nearly $11,000. He at once directed the firm’s cashier, Mr. Sewell, to transfer $10,-000 from his own to his wife’s account, which was done. The firm, through Mr. Sewell, then gave its receipts certifying that Mrs. Bowen had on deposit with the firm $18,122, upon which they agreed to pay 6 per cent, interest per annum. They paid her interest monthly on the whole of this sum up to March 1, 1896, but for March they paid interest only on $8,135, and after that time declined to pay her any interest.

The executors’ account was filed March 25, 1896, and accounted for the year’s business after the death of E. J. Hart, Sr., and showed that, among others, they had made the following disbursements for account of the firm’s business, viz.: Kills payable, $405,0:10.71; expenses, salaries, and interest, etc., in conducting the business of E. J. Hart & Co., $120,899.17; paid for merchandise, $891,593.11. During the whole of this period the business of the Arm was carried on in the name of E. J. Hart & Co. Ail the letters, papers, and documents concerning the business were signed simply, “E. J.

Hart & Co.,” no indication being given of liquidation. On the contrary, they insisted that they liad no intention of liquidation or retiring from business. In 1876, E. J. Hart, Sr., and E. J. Hart, Jr., organized the firm of E. J. Hart & Co. The anieles of co-partnership contained the following provision: An the event of the death of either partner, the business is to be continued by the survivor.” On these facts the trial judge directed a verdict for the plaintiff below on the ground that under them the defendants had no legitimate defense, and we agree with him in this conclusion.

Under the facia proven, it does not appear that on a legitimate settle-inent and adjustment of accounts between R. D. Bowen and the firm of E. J. Hart & Co. (the claims and demands of Mrs. Bowen taken as valid) that Bowen is legitimately indebted to the firm in any sum whatever which could be offset against the demands in this suit, even if sued for by R. '>. Bowen as community property. There is no doubt, under the evidence, that the compensation for the services rendered by Bowen to the (inn of E. J. Hart & Co. was undetermined during the lifetime of E. J.

Hart, Sr., and was a matter to be settled and adjusted, and, when settled, was to be in excess, not only of the pro forma crnli is "made on the books, but: in excess of the amounts which Bowen was allowed and did overdraw. Bowen thus had a legitimate claim for settlement with the linn of E. J. Hart & Co., and it was competent for E. J. Hart, Jr., the surviving partner, whether he was liquidating the partnership, or carrying on the same under the original articles of partnership, or with the consent of the heirs of E. J. Hart, Sr., to settle, adjust, and compromise the claim of Bowen.

There is no dispute that tin's settlement adjusting and compromising the matters in dispute was made. After being made and executed, as it unquestionably was, it can only be avoided and set aside in a direct action for the purpose, and on grounds of error, mistake, or fraud. Certainly it cannot be attacked and annulled in a collateral action brought by Mrs. Bowen to recover her separate property. The $10,000 transferred from the credit of B. D. Bowen to the credit of Mrs.

Bowen was a perfect transfer, accepted and recognized by the firm, and, if a gift from the husband to the wife, was perfected in sufficient compliance with the provisions of the Louisiana Revised Civil Code relating to manual gifts. See Stauffer v. Morgan, 39 La. Ann. 632, 2 South. 98. The alleged radical and fundamental error committed by the judge a quo in directing a verdict for-the plaintiff, as assigned in the brief of (he plaintiffs in error, was in holding that the plaintiff could recover judgment without proof of the paraphernality of the claim sued upon.

The record does not show that the judge so held, and, if he did, it was unnecessary. We agree with the learned counsel for tbe plaintiffs in error that under tbe law of Louisiana tbe wife in ber own name cannot maintain an action against others than ber husband-, unless it be to recover or protect her paraphernal funds and property, and that tbe wife has no capacity to sue or be sued, or to stand in judgment for a community right or obligation.

What doubt may have existed in our minds with regard to these propositions prior to tbe argument in this case has been wholly removed by the learned and exhaustive briefs on the subject, teeming with arguments and authorities, submitted by counsel for plaintiffs in error on and after the hearing in reply to the opposing counsel, who seemed to doubt. But we think that neither of these propositions controls this case. Mrs. Bowen had separate paraphernal property. It was managed and invested for her. The deposits made with the firm of E. J. Iiart & Co. were made by her as of her paraphernal property.

As such property, the firm of E. J. Hart & Co. received it, held it, paid interest on it, and fully acknowledged it up to about the time this suit was brought, and, so far as the evidence in this case goes, neither the firm of E. J. Hart & Co. nor any of the defendants have any legal interest or right to deny that the moneys sued for are Mrs. Bowen’s separate paraphernal property. As the case shows that Mrs.

Bowen claimed and deposited the moneys sued for as her paraphernal property, and as the defendants are estopped from denying the fact, we are of opinion that the paraphernality of the claim sued on was sufficiently proved to warrant the verdict directed. On the whole case, we find no reversible error, and th£ judgment of the circuit court is affirmed.