Gray v. Perlis

Plaintiff, as trustee in bankruptcy, brought this action to recover certain personal property, claiming that it belonged to the bankrupt’s estate, also to require an accounting, and for damages for alleged conversion. Judgment was given for defendants. Plaintiff appealed.

For several years prior to 1916 respondent B. Perlis was engaged in business on Sutter Street, in San Francisco, as a ladies’ tailor, employing some ten persons. In September of that year said business failed and Perlis made an assignment for the benefit of creditors to the board of trade, but was not released by said creditors from payment of his debts. On account of worry caused by the collapse of his business, Perlis became sick and unable to earn a livelihood for himself or his family, and the burden of supporting the family then fell upon Mrs. Perlis. In order to meet this situation, Mrs. Perlis, in October, 1916, applied for and obtained from the superior court a decree of sole tradership and thereupon opened and afterward conducted under her

The amended complaint, which contains four counts, charged in substance that said business was owned and operated by B. Perlis; that “said sole tradership was merely a fraudulent device and blind” carried on by Perlis and his wife in furtherance of a conspiracy entered into between them to defraud the creditors of Perlis; that as a result of said fraudulent acts on their part assets belonging to Perlis amounting to $15,000 have been sequestered and illegally converted by Mrs. Perlis, for which amount judgment was prayed. The trial court found against appellant on all charges of fraud and conspiracy and further found that “all the capital and assets of said ladies’ tailor business . . . are, and have, since the establishment of said business . . . been the separate property of Sophia Perlis.” Appellant contends “that the facts do not support the finding that all the business and assets were separate property,” but show that the same were community property, and that, there

[1] The question of whether said business belonged to Mrs. Perils and was carried on by her in good faith as her own enterprise, and at her expense and for her benefit, or whether, as charged in the complaint, it was operated by her husband in her name as a “cloak and screen” for the fraudulent purpose of sequestering the proceeds thereof, was one of fact for the trial court to determine, and said court having found upon substantial evidence in favor of Mrs. Perils on that issue, the matter of the ownership of said business is settled so far as this appeal is concerned (Oldershaw v. Matteson & Williamson Mfg. Co., 19 Cal. App. 179 [ 125 Pac. 263 ]; Estate of Pepper, 158 Cal. 619 [ 31 L. R. A. (N. S.) 1092 , 112 Pac. 62 ]; Hossfeldt v. Dill, 28 Minn. 469 [ 10 N. W. 782 ] ; Knapp v. Smith, 27 N. Y. 227 ), [2] and the ownership of said business having been thus established in Mrs. Perils, the proceeds of that business became her separate estate. (Diefendorff v. Hopkins, 95 Cal. 343 [ 28 Pac. 265 , 30 Pac. 549 ]; Estate of Pepper, supra; Smith v. Smith, 47 Cal. App. 650 [ 191 Pac. 60 ]; Civ. Code, sec. 162.)

[3] The fact that the husband contributed his time and skill in the conduct of the business gave him no interest in the business nor in the proceeds derived therefrom, nor did it have the effect of transmuting the status of ownership of the business from separate to community property. (Oldershaw v. Matteson & Williamson Mfg. Co., supra; Walsh v. Walsh, 84 Cal. 101 [ 23 Pac. 1099 ]; Lewis v. Johns, 24 Cal. 98 [ 85 Am. Dec. 49 ].) [4] Creditors have no lien on a debtor’s labor nor any way to compel him to work, and consequently he may legally give his entire time, skill, and industry to his wife in aiding to carry on a business owned by her, and his creditors cannot complain of his doing so, since such a donation of services is not inconsistent with his obligation toward them. (See cases cited in note, 28 A. L. R., p. 1048.) [5] Nor was it of any legal consequence that Perlis allowed his wife to use as part of the equipment of said business a few articles of personal property of insignificant value, belonging to him. (Walsh v. Walsh, supra; Estate of Pepper, supra; Hossfeldt v. Dill, supra.) The profits derived from the business cannot be said to be, as appellant contends, the product of the sewing-machine and

[6] The conclusion of the trial court that the earnings of said business were not community property may also be sustained upon the principle of law that the husband may relinquish to the wife the right to her earnings during marriage without any consideration other than their mutual consent, and that thereupon said earnings become her separate estate. (Smith v. Smith, supra; Wren v. Wren, 100 Cal. 276 [ 38 Am. St. Rep. 287 , 34 Pac. 775 ]; Larson v. Larson, 15 Cal. App. 531 [ 115 Pac. 340 ]; Diefendorff v. Hopkins, supra; Civ. Code, sec. 158.) As stated in Smith v. Smith, supra; “Such an agreement may be proved by evidence as to the acts and conduct of the husband with relation to the earnings of the wife or business conducted by her as community property indicating that he did not regard them as community property. (Larson v. Larson, supra; Kaltschmidt v. Weber, 145 Cal. 596 [ 19 Pac. 272 ].)” The facts already narrated show in this connection that following her husband’s business failure, Mrs. Perils, through a former attorney, applied for and obtained in good faith a decree of sole tradership in order that she might operate a business of her own and thereby support her family. Proceeding under said decree she procured the necessary money by pawning her separate property to open said business and she thereafter conducted the same under her name and management. Said decree was offered in evidence at the trial of this action by appellant in support of his case; and although said decree was afterward held to be invalid by the trial court because of an error committed in failing to specify in the tradership proceedings the true given name of Mrs. Perils’ husband, said business was nevertheless started and was carried on for a period of three and a half years under the belief that said decree was valid, during which time Perils, the husband, made no claim to said business or to any part of its profits; nor did he ever indicate that he regarded said business or the earnings of his wife therefrom as community property. We therefore believe that from the acts

[7] After reviewing the entire record, we conclude that the evidence is sufficient to support said contested finding to the effect that the assets of said premises were the separate property of Mrs. Perlis. The judgment is therefore affirmed.

Tyler, P. J., and Cashin, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of . appeal, was denied by the supreme court on April 15, 1926.