Bank of Commerce v. Baldwin

• Decision Date: 14 March 1906
• Citation: 85 P. 497,12 Idaho 202
• Parties: BANK OF COMMERCE, Limited, Appellant, v. GEORGE E. BALDWIN and SARAH A. BOWERS, Respondents
• Court: Idaho Supreme Court

85 P. 497

12 Idaho 202

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

Supreme Court of Idaho

March 14, 1906

MARRIED WOMEN-SEPARATE PROPERTY OF WIFE-POWER TO CONTRACT.

1. Under the act of March 9, 1903 (Sess. Laws 1903, 345), a married woman is given the absolute control of her separate property and estate, and has the unqualified right of contracting with reference to such property, and may sell and dispose of the same without the consent or approval of her husband.

2. The act of March 9, 1903, has reference only to the separate property of the wife, and the management and control thereof and the carrying on of business therewith, and the sale or disposal thereof and contracts in reference thereto or for the benefit thereof.

3. 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 or benefit of her separate estate, or in connection with the control and management thereof or in carrying on or conducting business therewith.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Frank J. Smith, Presiding Judge.

Action on a promissory note. Judgment by default against defendant Baldwin, and judgment of nonsuit in favor of defendant Bowers. Plaintiff appealed. Reversed.

Judgment reversed and a new trial granted. Costs awarded to appellant.

George M. Parsons and Carl A. Davis, for Appellant.

On a motion for nonsuit, the court must accept as proven every fact which the evidence tended to prove, and which was essential to be proven, to entitle the plaintiff to a recovery upon the cause of action as stated in the complaint. (Dow v. Gould & Curry Silver Min. Co., 31 Cal. 629; Warner v. Darrow, 91 Cal. 309, 27 P. 737; Cravens v. Dewey, 13 Cal. 40-43; Hineman v Matthews, 138 Pa. 204, 20 A. 843, 10 L. R. A. 233; Wallace v. City etc. R. Co., 26 Or. 174, 37 P. 477 25 L. R. A. 663; Butler v. Hyland, 89 Cal. 575, 26 P. 1108; Gray v. McNeal, 12 Ga. 429; Schwenke v. Union Depot etc., 12 Colo. 344, 21 P. 43; Corbalis v. Newberry Tp., 132 Pa. 9, 19 Am. St. Rep. 588, 19 A. 44; Maynes v. Atwater, 88 Pa. 496; Curle v. Beers, 3 J. J. Marsh. (Ky.) 170; Herbert v. King, 1 Mont. 480; Herbert v. Dufur, 23 Or. 462, 32 P. 302-304.)

Even under the old laws a married woman had the right to bind herself on a contract relative to her separate estate, and had the right to sign a note with her husband and to make her separate property liable for its payment, provided the proceeds were alleged and shown to be for the use and benefit of her separate estate. (Bassett v. Beam, 4 Idaho 106, 36 P. 501; Dernham v. Rowley, 4 Idaho 753, 44 P. 643.)

Her contracts need not express an intention on her part to charge her separate estate, nor need it be alleged in any suit thereon that such contract was made for the benefit of her separate estate. (Woods v. Orford, 52 Cal. 412; Cartan v. David, 18 Nev. 310, 4 P. 61; Heney v. Pesole, 109 Cal. 53, 41 P. 819.)

Where married women have been allowed the right of holding and managing their separate estate as if sole, they have been authorized to make all contracts necessarily incident to such enjoyment. (Conway v. Smith, 13 Wis. 125; Cookson v. Toole, 59 Ill. 519; Williams v. Hugunin, 69 Ill. 214, 18 Am. Rep. 607.)

It is not necessary to show that consideration passed to the maker of a promissory note, even though a woman. (Burkle v. Levy, 70 Cal. 250, 11 P. 644; Alexander v. Bouton, 55 Cal. 15; Cartan v. David, 18 Nev. 310, 4 P. 61; Westphal v. Neville, 92 Cal. 545, 28 P. 678.)

A motion for a nonsuit shall not be granted if there is any evidence to sustain the allegations of the complaint. ( York v. Pacific etc. Ry., 8 Idaho 574-583, 69 P. 1042.)

It is error to grant a nonsuit when plaintiff has made a prima facie case. (Simpson v. Remington, 6 Idaho 681, 59 P. 360; Kansteiner v. Clyne, 5 Idaho 59. 46 P. 1019; Lewis v. Lewis, 3 Idaho 645, 33 P. 38; Black v. City of Lewiston, 2 Idaho 276, 13 P. 80.)

A married woman who has induced another to part with money upon representations that it was secured by and with reference to her own use and benefit is estopped to deny that it was paid on that account. (American Mtg. Co. of Scotland v. Owens, 72 F. 219, 18 C. C. A. 531.)

Note is presumptively paid out of her separate estate. (Phillips v. Graves, 20 Ohio St. 371, 5 Am. Rep. 675; Dobbins v. Hubbard, 17 Ark. 189, 65 Am. Dec. 425; Rogers v. Ward, 8 Allen (Mass.), 387, 85 Am. Dec. 710.)

While contracts may be void in law, equity introduces the innovation that though a married woman did not bind herself personally, yet her separate estate was thereby charged, and it was considered to be immaterial whether it was for her benefit or not. (Matthewman's Case, L. R. 3 Eq. 781, 787; Hulme v. Tenant, 1 Brown Ch.; 1 White & T. Lead. Cas. Eq. 678.)

T. D. Cahalan, for Respondents.

The common law is the rule of decision in Idaho in all cases not provided by statute (Idaho Rev. Stats., sec. 18). and a married woman cannot contract in any form unless power is expressly given by statute. (McFarland v. Hein, 127 Mo. 327, 48 Am. St. Rep. 631, 29 S.W. 1030; Freeman's Appeal, 68 Conn. 533, 57 Am. St. Rep. 114, 37 A. 420, 37 L. R. A. 452.)

In order to charge the separate property of the wife, or render it liable to levy and sale, it must be alleged in the complaint, and proven, that the debt was incurred for the use or benefit of her separate property, or for her own use or benefit. (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; McDonald v. Rozen, 8 Idaho 352, 69 P. 125; Holt v. Gridley, 7 Idaho 416, 63 P. 188.)

And a note made by a married woman purporting neither to charge her separate estate nor to be for her own benefit is invalid. ( Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Fisk v. Mills, 104 Mich. 433, 62 N.W. 559; Wilcox v. Arnolds, 116 N.C. 708, 21 S.E. 434.)

Where she executes a promissory note of which others are to receive the benefit, she herself being a surety in effect, she will not be held in equity to have created a charge upon her separate estate, unless the contract itself includes an express provision to that effect. (Farrand v. Beshoar, 9 Colo. 291, 12 P. 197, 198; Bowles v. Trapp, 139 Ind. 55, 38 N.E. 406; Brown v. Brown, 121 N.C. 8, 27 S.E. 998, 38 L. R. A. 242; Westervelt v. Baker, 56 Neb. 63, 76 N.W. 440; Cook v. Walling, 117 Ind. 9, 10 Am. St. Rep. 17, 19 N.E. 532, 2 L. R. A. 769.) A married woman is not bound by a promissory note executed by her jointly with another. It is the note of the other joint maker. (Brown v. Orr, 29 Cal. 121, 122; Althof v. Canbrein, 38 Cal. 233, 99 Am. Dec. 363.)

A married woman's separate property cannot be bound up under contract, unless her intent to deal with and bind the property clearly appears. Such intent cannot be assumed; it must appear that the contract is one from which benefit results to the property or for her own benefit. ( Kantrowitz v. Prather, 31 Ind. 92, 99 Am. Dec. 587.)

The statutes of Idaho make married women incapable of contracting, except in relation to their separate property. The statute of 1903 does not change section 3220 of our Revised Statutes nor the rule of the common law, so far as it applies to the contracts at large of a married woman, that she is incapable of binding herself by an executory contract, and that all such contracts made by her, whether in writing or by parol, are absolutely void at law. (Dernham v. Rowley, 4 Idaho 753, 44 P. 645; McKee v. Reynolds, 26 Iowa 578; Pond v. Carpenter, 12 Minn. 432; Ames v. Foster, 42 N.H. 381, 385; Norton v. Meader, 4 Saw. 605, F. Cas. No. 10, 351; Howe v. North, 69 Mich. 272, 37 N.W. 213; Payne v. Thompson, 44 Ohio St. 193, 5 N.E. 654; Taylor v. Boardman, 92 Ill. 566.)

The respondent Bowers had not the legal capacity to sign a note for the use of another. (Dernham v. Rowley, 4 Idaho 753, 44 P. 643; Yale v. Dederer, 18 N.Y. 265, 72 Am. Dec. 507; Trimble v. State, 145 Ind. 154, 44 N.E. 260, and note, "Void Contracts.")

Except in special cases, as under the sole traders' act. a married woman cannot, by contract, create a personal liability against herself in any form. (Maclay v. Love, 25 Cal. 367, 85 Am. Dec. 133; McDonald v. Rozen, 8 Idaho 352, 69 P. 125.)

Where the evidence would not authorize the jury to find a verdict for the plaintiff, or if the court would set it aside, if so found, as contrary to evidence, in such case it is the duty of the court to nonsuit the plaintiff. (Ringgold v. Haven & Livingston, 1 Cal. 116, 117; Dalrymple v. Hanson, 1 Cal. 127; Harney v. McLevan, 66 Cal. 35, 4 P. 884; Gilman v. Bootz, 63 Cal. 121; Green v. Christie, 4 Idaho 438, 40 P. 55, 56.)

AILSHIE, J. Stockslager, C. J., SULLIVAN, J., concurring.

OPINION

AILSHIE, J.

This action was commenced by the Bank of Commerce against Geo. E Baldwin and Sarah A. Bowers to recover a balance of $ 5,697.05 due on a promissory note executed by Baldwin and Mrs. Bowers on the fourth day of November, 1903. Baldwin defaulted and Mrs. Bowers answered admitting the execution of the note and the amount due, but denying her liability for the reason that the same was executed by her simply as a surety for Baldwin, and that the contract did not in any way affect her separate property, and was not made for her use and benefit or in reference to her separate estate. The case came on regularly for trial and the plaintiff introduced its evidence. The defendant moved for a nonsuit on the ground that the evidence of the plaintiff failed to show that the contract was executed for the benefit of or concerning the separate property or estate of Mrs. Bowers, or for her...