Bank of Commerce, Ltd. v. Baldwin

• Court: Idaho Supreme Court
• Writing for the Court: AILSHIE, C. J.
• Citation: Bank of Commerce, Ltd. v. Baldwin, 14 Idaho 75, 93 P. 504 (Idaho 1908)
• Decision Date: 13 January 1908
• Parties: BANK OF COMMERCE, LTD., Appellant, v. GEORGE E. BALDWIN and SARAH A. BOWERS, Respondents

93 P. 504

14 Idaho 75

BANK OF COMMERCE, LTD., Appellant, v. GEORGE E. BALDWIN and SARAH A. BOWERS, Respondents

Supreme Court of Idaho

January 13, 1908

MARRIED WOMAN'S CONTRACT-LIABILITY ON CONTRACT AS SURETY-CONTRACTS WITH REFERENCE TO MARRIED WOMAN'S SEPARATE PROPERTY-ESSENTIALS OF CONTRACT AS SURETY FOR THIRD PERSON WHERE IT IS SOUGHT TO BIND HER SEPARATE ESTATE.

1. Under the provisions of sec. 2 of the act of the legislature approved March 9, 1903 (Sess. Laws, 1903, p. 345), construed in connection with the other provisions of the code, a married woman cannot bind herself personally for the payment of a debt that was not contracted for her own use or benefit or for the use or benefit of her separate estate, or in connection with the control and management thereof, or in carrying on or conducting business therewith, unless the contract and obligation is made so as to create a lien or encumbrance on her separate estate or some portion thereof as security for the payment of the debt.

2. Under the provisions of sec. 2 of the act of March 9, 1903 which transfers to the wife the management, control and absolute right of disposition of her separate property, and confers upon her all the privileges of contracting in relation thereto, and all the rights or privileges necessary to the complete enjoyment and power of disposition thereof, a married woman has no authority to become surety or guarantor for the debts of others; such right and the concurrent obligations thereof not being necessary or essential to the complete enjoyment of her separate estate.

3. The power to contract with reference to her separate property is not an absolute and unlimited right of contract on all matters, but, on the contrary, confines that right to those contracts that "have reference to her separate estate."

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, for the County of Ada. Hon. George H. Stewart, Presiding Judge at the time of trial and rendition and entry of judgment.

Action by plaintiff against one George E. Baldwin and Sarah A Bowers on a promissory note executed by the defendants jointly, where the debt was contracted for the use and benefit of Baldwin and the money was received by him for his individual use and benefit, and no part thereof was received by Mrs. Bowers. Judgment for defendant Bowers. Plaintiff appealed from the judgment and an order striking from the files a proposed statement. Judgment and order affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

Edwin Snow, and Carl A. Davis, for Appellant.

It is provided by the act of 1903 that a married woman may enter into any contract with reference to her property that a married man may. The limit that is put upon her contractual power is the same as that of her husband. The promissory note in litigation in this case is a contract, and it is a contract by a married woman with reference to her property. By this contract she promises to pay money. Money is property. "The term 'property' includes moneys credits, bonds, stocks, etc." (Sec. 1313, Pol. Code of Idaho; 6 Words and Phrases Judicially Defined, p. 5717.)

This note, then, is a contract with reference to her property made by a married woman, and under the provisions of the section quoted above she is liable on it to exactly the same extent as her husband would be. There are several cases in this state which directly hold that the wife cannot bind herself for the debt of her husband. But there is no hint in any statute, or in any case, nor is there any reason why, under the statute which prevails here, a married woman is not liable as a surety for a third party. We are trying to hold this woman not for her husband's debt but for the debt of a third party upon her promise in writing to pay that debt.

N. M. Ruick, for Respondent Sarah A. Bowers.

The statement in this case, not having been filed within the time allowed by the statutes and the order of the court extending the time, should be stricken from the files on motion. ( Swartz v. Davis, 9 Idaho 238, 74 P. 800; Hoehnan v. New York Drygoods Co., 8 Idaho 66, 67 P. 796; Sandstrom v. Smith, 11 Idaho 779, 84 P. 1060; Lydon v. Piper, 5 Idaho 541, 51 P. 101, 102.)

At common law the wife, except in a few special cases, could not act as a feme sole, and this disability continues to exist as to the person and property of married women except to the extent of changes by legislature in express terms or by reasonable construction. (15 Ency. of Law, 2d ed., 790; Brown v. Brown, 121 N.C. 8, 27 S.E. 998, 38 L. R. A. 242.) Where a special or limited power of making contracts is given to a married woman, she is still considered as prima facie unable to contract at all, and the burden is on the person relying on the validity of her contract to bring it within the statutory rule. (15 Ency. of Law, 792.)

In the cases decided by our supreme court prior to the former decision in this case it had been uniformly held that a married woman's power to contract was limited to contracts having reference to her separate property. This has not been changed by the amendment of 1903 referred to. Was it the intention of the legislature that a married woman should be permitted to contract generally? Then why refer to separate property at all.

AILSHIE, C. J. Stewart, J., SULLIVAN, J., Concurring.

OPINION

AILSHIE, C. J.

This is an appeal from the judgment and an order striking a proposed statement from the files and refusing to settle the same. The trial court had made an order extending the time for preparing the statement to June 7, 1906. Thereafter a further order was made, but the second order was not made until after the expiration of the time allowed by the first order. When the statement was presented for settlement, on motion of the adverse party, the same was stricken from the files, and the court refused to settle it on the ground that it had not been presented in time and that the court had lost jurisdiction to settle or allow it. The action of the court was clearly correct and in conformity with the repeated decisions of this court. (Lydon v. Piper, 5 Idaho 541, 51 P. 101; Hoehnan v. New York Drygoods Co., 8 Idaho 66, 67 P. 796; Swartz v. Davis, 9 Idaho 238, 74 P. 800; Sandstrom v. Smith, 11 Idaho 779, 84 P. 1060.)

On the appeal from the judgment the only question presented for our consideration is: Can a married woman be held for the payment of a promissory note executed by her as a comaker with a person not her husband where the debt was not contracted for her own use or for the use or benefit of her separate estate, or in connection with the control and management of her separate estate or in carrying on or conducting business with her separate estate? It is admitted that under the repeated decisions of this court, she would not be liable for this debt if the party for whose benefit the debt was incurred had been her husband. Indeed, it has been repeatedly so held by this court. (See Dernham v. Rowley, 4 Idaho 753, 44 P. 643; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Strode v. Miller, 7 Idaho 16, 59 P. 893; Holt v. Gridley, 7 Idaho 416, 63 P. 188.) This case was here once before (Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497), and on that appeal the court held that "A married woman cannot bind herself personally for the payment of a debt that was not contracted for her own use or for the use and benefit of her separate estate, or in connection with the control and management thereof or in carrying on or conducting business therewith." We might rest our decision upon the opinion in the last appeal as being the law of the case, but since the question squarely arises on this appeal as to the liability of the wife as a surety or guarantor for the debt of a stranger, we have thought it best to pass on that point. The findings of fact upon which our decision and conclusion must necessarily rest in this consideration are as follows: "That the defendant Sarah A. Bowers, at the time she signed the said note was a married woman, and at the date of the execution of said note was living with her husband as husband and wife in Ada county, Idaho, and that the said note was not made or signed by her as a charge upon her separate estate, nor for her own use or benefit. That the said note was not made in or about the carrying on of any trade or business by the defendant, Sarah A. Bowers, or for her use, for her benefit, or for the use or benefit of her separate property."

The act of March 9, 1903, repealed sections 2498 and 2499 of the Revised Statutes, with reference to a married woman, which sections had previously given the husband the management and control of her separate property, and had also provided for her becoming a sole trader, and instead thereof sec. 2 of the amendatory act provides that "during the continuance of the marriage the wife has the management, control and absolute power of disposition of her separate property, and may bargain, sell and convey her real and personal property and may enter into any contract with reference to the same in the same manner and to the same extent and with like effect as a married man may in relation to his real and personal property." (Sess. Laws, 1903, p. 346.) It is argued by counsel for appellant that any and all contracts that a married woman can possibly enter into necessarily have reference to "her separate property," and that she may therefore enter into any contract that could be entered into by a feme sole. It is further argued that no contract can be entered into but what has reference to property, and that therefore a contract by a married woman which has reference to "her separate property" will comprehend any and all contracts she might enter into. That...