First Nat. Bank of Belmar v. Shumard

• Decision Date: 04 June 1918
• Parties: FIRST NAT. BANK OF BELMAR v. SHUMARD.
• Court: New Jersey Supreme Court

103 A. 1001

91 N.J.Law 379

FIRST NAT. BANK OF BELMAR

v. SHUMARD.

Supreme Court of New Jersey.

June 4, 1918.

Appeal from First District Court of Monmouth County.

Suit by the First National Bank of Belmar against Kate Shumard. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued February term, 1918, before SWAYZE, TRENCHARD, and MINTURN, JJ.

Charles E. Cook, of Asbury Park, for appellant. J. Clarence Conover, of Freehold, for respondent.

SWAYZE, J. The bank sues to enforce the defendant's liability as an accommodation indorser of a promissory note, dated August 2, 1916. The defendant had done business, executed papers, and been generally known as Kate Shumard. Shumard was the name of her first husband. After his death, she married Carr but continued to do business as before, including business with the plaintiff bank. It does not appear that the bank knew that she was a married woman: On March 14, 1916, Carr obtained a decree nisi for a divorce, which was made absolute on September 15, 1916. The decree nisi did not dissolve the marriage, and the defendant was a married woman when she indorsed the note. The only question is whether she is estopped by her representation that she was a widow. The authorities settle the case in her favor on solid grounds. Cannan v. Farmer, 3 Exch. 698, a case where the defendant signed the note "Ann Farmer, widow." Liverpool Adelphi Loan Association v. Fairhurst and wife, 9 Exch. 422; Wright v. Leonard, 11 C. B. N. S. 258. In the first case cited, Baron Parke said:

"The defendant's incapacity to contract by reason of her coverture was not removed by her representation. It is not an estoppel in any way."

In the second case where the action was based on fraud, Chief Baron Pollock said:

"She is undoubtedly responsible for all torts committed by her during coverture, and the husband must be joined as a defendant. They are liable therefore for frauds committed by her on any person, as for any other personal wrongs. But where the fraud is directly connected with the contract with the wife, and is the means of effecting it, and parcel of the same transaction, the wife cannot be responsible, and the husband be sued for it together with the wife. If this were allowed, it is obvious that the wife would lose the protection which the law gives her against contracts made by her during coverture; for there is not a contract of any kind which a feme covert could make, whilst she knew her husband to be alive, that...