Bowles v. Trapp

• Decision Date: 17 October 1894
• Docket Number: 16,983
• Parties: Bowles v. Trapp et al
• Court: Indiana Supreme Court

38 N.E. 406

139 Ind. 55

Bowles v. Trapp et al

No. 16,983

Supreme Court of Indiana

October 17, 1894

From the Dearborn Circuit Court.

Judgment affirmed.

N. S Givan, for appellant.

G. B Goodhart and J. K. Thompson, for appellees.

OPINION

Dailey, J.

The appellant brought his action in the Dearborn Circuit Court, to recover on a note executed by the appellee Anna Trapp, and to foreclose a mortgage given by the appellees to secure the payment of said note. The appellee, Anna Trapp, alone answered the complaint in three paragraphs, the first being a plea of non est factum; the second a plea of coverture, and that she signed the note sued on as surety for her coappellee, Charles P. Trapp, and not otherwise, and the third a general denial. A separate demurrer addressed to the first and second paragraphs of her answer was sustained as to the first, and overruled as to the second. By leave of court, Mrs. Trapp amended the first paragraph thereof. To the judgment of the court in overruling the demurrer to the second paragraph, the appellant at the time excepted.

There was a reply to this answer of the appellee Anna Trapp, in two paragraphs, the first a general denial, and the second alleged that the money received on account of said loan by Charles P. Trapp was obtained by him as the agent of the defendant Anna Trapp, for her use and benefit, and by her authority and direction. The case was submitted to the court for trial, and after hearing the evidence, it found for the appellees. The appellant then filed his motion for a new trial, which was overruled by the court, and he excepted. Thereupon the court rendered judgment for the appellees, and from it this appeal is taken. The appellant assigns two errors:

1. The court erred in overruling the demurrer to the second paragraph of the separate answer of Anna Trapp.

2. The court erred in overruling the motion for a new trial.

The decisions of this court affirm the doctrine that a married woman is not bound by the mere form of the contract into which she enters, but the facts must control in determining the question whether the wife or her property is surety for another. Vogel v. Leichner, 102 Ind. 55, 1 N.E. 554; Nixon v. Whitely, etc., Co., 120 Ind. 360, 22 N.E. 411; State, ex rel., v Kennett, 114 Ind. 160, 16 N.E. 173; Voreis v. Nussbaum, 131 Ind. 267, 31 N.E. 70. The contention of appellant's counsel that it is hard to see how the question of suretyship can be raised where there is but one maker of the promissory note sued upon, is quite plausible. But this is no longer an open question. In Miller, Exr., v. Shields, 124 Ind. 166, 24 N.E. 670 (171), the court made the same query, and Berkshire, J., said: "It is quite difficult to imagine the relation of principal and surety without a principal, and equally so to find a substantial reason on which to rest the presumption that whenever a married woman executes her individual promissory note she occupies the position of a surety for her husband or some other person. It is true that it may be shown that the individual note of a married woman was given solely for the benefit of the husband, * but when this is claimed by her it must be made to appear affirmatively." It thus appears that the form of the contract is immaterial to the defense of the wife in this kind of a case, save as it may affect the burden of proof, and require the wife to show that in the execution of the note in suit, she occupied the position of surety for her husband or some other person. It will be observed that the demurrer to the answer of the wife admits that the appellant knew the money was loaned to be applied, and was appropriated by him to the sole use and benefit of the husband, and knew that the words: "For my sole use and benefit only," as well as the form of the supposed contract, did not express the transaction, and parted with his money to the husband, and not the wife, and applied $ 399 of it in payment of the former's debt. Such facts, if established by evidence, constitute a complete defense to the action under previous decisions of this court. Appellant's learned counsel, in his brief, says the evidence clearly shows that Charles P. Trapp had been acting as his wife's agent in the transaction of business, and invokes the legal maxim: "Qui facit per alium facit per se. He who acts through another acts himself, the acts of the agent are the acts of the principal." Black's L. D. 982. It is also a familiar rule of law, that the capacity of a married woman to contract through an agent is now coextensive with her capacity to contract directly. 14 Am. and Eng. Ency....