Barnum v. Young

• Decision Date: 19 March 1880
• Citation: 10 Neb. 309,4 N.W. 1054
• Parties: BARNUM v. YOUNG.
• Court: Nebraska Supreme Court

10 Neb. 309

4 N.W. 1054

BARNUM

v.YOUNG.

Supreme Court of Nebraska.

Filed March 19, 1880.

Error from Platte county.

Millet & Son, for plaintiff.

____ McAllister, for defendant.

COBB, J.

Upon the trial of this cause in the district court the following instructions were given on the court's own motion, and excepted to by the plaintiff.

“1. The defendant being a married woman at the time she signed the note in question she will not be liable for the payment thereof, unless it was given with reference to, and on the faith and credit of, her separate property and estate.

2. You are instructed by the court that under the law and evidence of this case the material question for you to settle from the evidence is, did the defendant, at the time she gave the note to John C. Compton, contract with reference to, and upon the faith and credit of, her separate estate? If she did so contract, then she would, under the law of this case, be liable for the full amount of the note; but if, from the evidence, you find that she did not so contract with reference to, and upon the faith and credit of, her separate estate, then you must find for the defendant. * * *”

Whatever might be my own views, as an individual member of the court, upon this question, of the liability of married women to be sued upon their contracts, were the question now for the first time presented, yet the point having been at least three times decided by this court, it should be considered as settled here. In the case of Elizabeth Davis v. The First Nat. Bank of Cheyenne, 5 Neb. 242, the court, by the late chief justice, say: “The statute confers on her the right and power to make legal and binding contracts, it gives her the legal right to sue, and makes her legally liable to be sued on her contracts, in the same manner as if she were unmarried. * * * But the rule must be observed that all such contracts of a feme covert must be with reference to, and upon the faith and credit, of her separate estate.”

In Halc v. Christy, 8 Neb. 264, the court, by Mr. Justice Lake, say: “It is urged by counsel for Mrs. Christy that owing to her coverture she incurred no personal liability by signing said note. This, no doubt, is true, and the finding of the court below that she was liable cannot be upheld. Even under the very liberal provisions of our more recent legislation respecting the rights of married women, this court has already held that, to bind her, the contract must be made with...