First Nat. Bank in Alexandria v. Ernst
| Decision Date | 18 May 1928 |
| Docket Number | No. 25969.,25969. |
| Citation | 219 N.W. 798,117 Neb. 34 |
| Parties | FIRST NAT. BANK IN ALEXANDRIA, S. D., v. ERNST ET AL. |
| Court | Nebraska Supreme Court |
A note executed by a married woman living with her husband in Nebraska, as surety only for his debt, is not binding upon her, unless it shall be made to appear that she intended to bind her separate estate for its payment.
In an action against a married woman, on a note as above described which did not relate to her separate estate, trade or business, the burden is upon the party seeking to hold her liable to prove that she signed the note with intent to bind her separate estate for its payment.
Intent of a married woman to bind her separate estate for the payment of a note executed in Nebraska, as surety for her husband with whom she is living in Nebraska, where such note does not relate to her separate estate, trade or business, is a condition precedent, in the absence of which she has no capacity to make a binding contract.
A married woman who, jointly with her husband, signs a note as surety only, which is dated and made payable in another state in which the common-law disability of married women to contract has been removed, and which note was delivered to the payee in Nebraska without a clause therein showing that she intended to bind her separate estate, will be permitted to show by oral testimony that, at the time of its execution, it was agreed between her and the payee that her separate estate would not be liable for the payment of such note, and it is error for the trial court to exclude such evidence. Farm Mortgage & Loan Co. v. Beale, 113 Neb. 293, 202 N. W. 877, distinguished.
Where intent of a married woman is a direct issue, it is competent for her to testify that she had no intent to bind her separate estate, such intent being in the nature of an existing fact which she knows more about than anyone else, the weight of such testimony being a matter for the jury to consider.
A renewal note, executed by a married woman as surety only for her husband, where no other or new consideration is shown, is subject to the same defense as the prior note.
When a person in one state sends a contract by mail to a person in another, to be executed and returned to the sender, the sender makes the post office establishment of the United States his agent, and a deposit of the signed contract, by the receiver, in the post office, in an envelope properly stamped and addressed to the sender, completes the contract.
One who purchases or has assigned to him, after maturity, a note signed by a married woman as surety only for the payment of her husband's debt is not an innocent purchaser and cannot enforce the note against the married woman if the payee of the note could not do so.
Appeal from District Court, Johnson County; Raper, Judge.
Action by the First National Bank in Alexandria, S. D., against L. H. Ernst and Rua F. Ernst. From a judgment for plaintiff, last named defendant appeals. Reversed and remanded.
F. C. Radke and Magdelene Craft Radke, both of Tecumseh, for appellant.
Danforth & Seacat, of Alexandria, S. D., and S. P. Davidson and Clare B. Davey, both of Tecumseh, for appellee.
Rua F. Ernst, a married woman, lived in Nebraska when the note in suit, for $1,320, was executed, and appeals from a judgment thereon. The note was dated “Alexandria, South Dakota, September 12th, 1923,” “Payable at the First National Bank, Alexandria, South Dakota” to “The First National Bank of Alexandria, South Dakota.” The note was indorsed: The plaintiff bank will be referred to as the “in” bank, and the First National Bank of Alexandria as the “of” bank.
The “of” bank having become insolvent, its receiver sold the note to the “in” bank in January 30, 1925, after its maturity.
Mrs. Ernst pleaded coverture as one defense, claiming the note was a Nebraska contract; on and since September 12, 1922, at which time she gave a note of which the one in suit was a renewal, she has been living with her husband, a resident citizen, in Nebraska; the September 12, 1923, renewal note was obtained by Frank D. Peckham, president of the “of” bank, from her in Nebraska where it was actually executed in his presence, under an express agreement that the rights of the parties to the note “should be governed by the laws of Nebraska;” that no judgment would be asked against her thereon; that her separate estate would never be charged with payment, and that the note was so accepted by Peckham for the “of” bank. Her husband gave the first note for his individual debt of long standing, and, after he signed it, Peckham induced her to sign it, through trickery, deceit and fraud, and promised her the “of” bank would hold and not dispose of it; that no judgment would be taken against her; her property would not be charged with its payment; he desired her signature as a matter of form to get the bank examiner's approval; her signature was not asked as a maker, and the “of” bank would look to her husband only for payment. Then follows the usual allegations of reliance; of no consideration; the notes did not concern her property or business, were not given with reference to, upon the faith or credit of, or with intent to bind her estate; her husband received the sole consideration, and the “in” bank took the note in suit, after due.
Plaintiff alleged in reply: Rua F. Ernst was married; the note was “made, executed and delivered to the plaintiff by defendants at Alexandria, South Dakota;” the note was a “South Dakota contract,” and it “was to be governed” by “certain sections of the Code of that state.”
[1] Neither note contained a clause concerning Mrs. Ernst's liability as a married woman, intent to bind, or that it was in reference to, her estate or business.
Section 1510, Comp. St. 1922, moderates the incompetency of a married woman to contract only to the extent that she “may bargain, sell and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to the same extent, * * * as a married man may.” Section 1511, Comp. St. 1922, relates to her separate trade or business. There is no pretense that either note originated with her trade or business.
In Farm Mortgage & Loan Co. v. Beale, 113 Neb. 293, 202 N. W. 877, it is said:
Such intent is not presumed. It must be proved by the promisee.
[5] The evidence is conclusive that Mr. and Mrs. Ernst signed and delivered both notes in Nebraska, the first one to Mr. Peckham in person, and the one in suit to the post office establishment of the United States. Mrs. Ernst knew nothing about the laws of South Dakota and, of course, had no intention concerning them. She testified, over objection, she intended that the Nebraska laws should govern. Where intent is a direct issue in a case, it is competent for the doer to state his own mind, as he knows more about it than any one else. Hackney v. Raymond Bros. Clarke Co., 68 Neb. 624, 632, 94 N. W. 822, 99 N. W. 675;McCormick Harvesting Machine Co. v. Hiatt, 4 Neb. (Unof.) 587, 95 N. W. 627;Beach v. Beach, 160 Iowa, 346, 141 N. W. 921, 46 L. R. A. (N. S.) 98, Ann. Cas. 1915D, 216;Preger v. Barnett, 175 Mich. 494, 141 N. W. 587;Edwards v. Svea Fire & Life Ins. Co., 141 Minn. 285, 170 N. W. 206;Chambers v. Chambers, 227 Mo. 262, 282, 127 S. W. 86, 137 Am. St. Rep. 567;Eckerd v. Weve, 85 Kan. 752, 758, 118 P. 870, 38 L. R. A. (N. S.) 516.
The main question in this case is: Where was the note in suit executed and delivered, and with what intent?
While the writer entertains doubt as to some of the statements in the opinion in Farm Mortgage & Loan Co. v. Beale, 113 Neb. 293, 202 N. W. 877, the conclusion there reached was a proper one under the facts. Mrs. Beale signed the note in Nebraska. It was dated and made payable in Kansas City, Missouri. The facts and circumstances indicate, very strongly, that the note was delivered in Missouri, and it became a contract where it became effective by delivery.
In McElroy v. Metropolitan Life Insurance Co., 84 Neb. 866, 122 N. W. 27, 23 L. R. A. (N. S.) 968, 19 Ann. Cas. 28, the rule is stated that, where parties to a contract “are in different jurisdictions, the place where the last act is done which is necessary to give validity to the contract is the place where the contract is entered into.”
Upon the trial of the instant case, counsel for Mrs. Ernst offered to prove that, at the time the first note (which was renewed by the note in suit) was executed, one of the executive officers of the “of” bank was present at her home in Nebraska, transacting the business for the bank; that, before she would sign the note, it was agreed that she should not be bound for the payment thereof; the note would be governed by the Nebraska laws, and, by signing the note, she would not bind her separate estate for its payment. The trial court erroneously rejected the offer.
It has been so many times held in this state that “intent” is the foundation of a married...
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