Habenicht v. Rawls

• Citation: 24 S.C. 461
• Parties: HABENICHT v. RAWLS.
• Decision Date: 25 March 1886
• Court: South Carolina Supreme Court

24 S.C. 461

HABENICHT v. RAWLS.

Supreme Court of South Carolina.

March 25, 1886

1. Under the power given by statute to a married woman, " to contract and be contracted with as to her separate property in the same manner as if she were unmarried," she can make only such contracts as at the time they are made, relate to or concern her separate property.

2. A married woman signed merely as a surety the promissory note of her husband. Held , that she was not liable, and would not have been, even if she had in express terms declared her intention thereby to bind her separate estate.

3. Before a married woman can be made liable for the breach of a contract alleged to have been made by her, it must be made to appear from the inherent nature of the contract, or otherwise, that the contract was made in relation to, or concerned, her separate property.

Before HUDSON, J., Richland, October, 1885.

This was an action commenced in March, 1885, by C. C. Habenicht against Rawls & Wilhalf, John Agnew, jr., and Jennie Agnew, upon three promissory notes bearing date January 24 1883, given to plaintiff by Rawls & Wilhalf (a mercantile firm composed of J. S. Rawls, C. H. Wilhalf, and John Agnew jr.), and endorsed by said John Agnew, jr., and Jennie Agnew his wife. Mrs. Agnew was at that time, and at the time of the trial, possessed of a separate estate.

Mrs Agnew answered, alleging, among other defences, that she was a mere surety, and that at the time she signed the note she was a married woman, and still was such. The evidence showed the facts stated in this answer to be true.

The plaintiff requested the judge to charge the jury:

1. That a married woman has a capacity to contract debts as if unmarried, restricted only to their collection from her separate property.

2. If the foregoing be refused, we would ask the court to charge: That it is a matter of evidence whether Mrs. Agnew intended to charge her separate estate with the payment of the notes, although she did not, in express terms, so charge it; and that it is for the jury to determine, from the evidence and the circumstances, whether she so intended.

The judge charged the jury as follows:

The principal question in this case is as to the power of a married woman to bind her separate estate by her contracts, and as to that my instructions to you will probably determine this case; for, as you are the judges of the facts, I am the sole judge of the law, and you are bound to take it as I give it to you. If I commit error, there is a tribunal in which these gentlemen can have me corrected.

A married woman can make no contract, except such as is expressly authorized by law, and she cannot bind herself except in one manner, and that is declared by the statute. She may " contract and be contracted with as to her separate property ." The contract must be as to her separate property, must have reference to her separate property, must concern her separate property. A married woman who undertakes to enter into a contract of endorsement or suretyship, or to make a joint note with others, cannot bind herself thereby unless it is expressed upon the face of the instrument that she intends to bind her separate property, or the inherent nature of the contract must show that it concerned her separate property, or it must be proved aliunde that her intention was to bind her separate property. The simple endorsement of a promissory note, the joint making of a note, or other contract of suretyship, and nothing more, cannot bind a married woman.

As to the point whether John Agnew, jr., and Mrs. Jennie Agnew are endorsers of these notes, or joint makers with Rawls & Wilhalf, I am bound to charge you that when one signs his name across the back of a promissory note, payable to the order of a third party, and before the signature or endorsement by said third party, and no proof going to show to the contrary, he is bound with the principal as an original promisor and maker of the note.

His honor, the presiding judge, here read the plaintiff's requests to charge, and then proceeded: The first of these requests I refuse, gentlemen. The second is correct, with the modification that there must be some evidence besides the fact of signing, some evidence aliunde to show her intention to bind her separate property, and in this case, gentlemen, there is none.

The form of your verdict should be: " We find for the defendant, Jennie Agnew; " and if you should find for the plaintiff, against the other defendants, you should so state, with the amount of your verdict written out.

The jury found the following verdict: We find for the defendant, Jennie Agnew, and we find for the plaintiff, as against Rawls & Wilhalf and John Agnew, jr., three hundred and ten dollars and forty-six cents.

The plaintiff appealed upon the following exceptions:

I. Because his honor charged the jury that " a married woman, who undertakes to enter into a contract of endorsement or suretyship, or to make a joint note with others, cannot bind herself thereby, unless it is expressed upon the face of the instrument that she intends to bind her separate property, or the inherent nature of the contract must show that it concerned her separate property, or it must be proved aliunde that her intention was to bind her separate property. The simple endorsement of a promissory note, or other contract of suretyship, and nothing more, cannot bind a married woman."

II. Because his honor charged the jury that there was no evidence in this case of an intention on the part of Mrs. Jennie Agnew to contract as to her separate estate.

III. Because his honor refused plaintiff's first request to charge.

IV. Because his honor refused plaintiff's second request to charge without modification.

V. Because his honor charged the jury, in effect, that they must find for the defendant, Mrs. Agnew.

Messrs. John T. Sloan, jr. , and W. H. Lyles , for appellant, cited 12 Am. Rep. , 481; 1 Bish. Mar. Wom. , §§ 604, 848-858; 864-879; 47 Mo. , 504; 34 Ala. , 535; 13 B. Mon. , 384; 17 Ark. 189; 4 Beav. , 319; 1 Bro. C. C. , 201; 1 Ark. 189; 26 Ala. , 332; 3 Green Ch. , 512; 23 Mo. , 457; 19 Ala. , 180; 20 Ohio St. , 371; 17 Cent. L. J. , 1; 16 Id. , 244; 3 DeSaus. , 417; 2 Bish. Mar. Wom. , §§ 370, 371, 237; 16 S.C. 256; 18 N. Y. , 265; 1 Strob. Eq. , 27; 58 N. Y. , 84; Gen. Stat. , §§ 2036, 2037.

Mr. John Bauskett , contra.

OPINION

MR JUSTICE MCIVER.

On January 24, 1883, the defendants, Rawls & Wilhalf, made the notes sued on payable to the plaintiff, and before their delivery to him they were endorsed by the other two defendants, Jennie Agnew then and now being a married woman. The notes were given in discharge of a lien held by the plaintiff on the stock of goods belonging to Rawls & Wilhalf. Mrs. Agnew had no interest in the stock of goods, and received no consideration for her endorsement. She was, therefore, practically, a mere surety for the debt of another; and the sole question raised by this appeal is whether she, being a married woman, was capable of making such a contract.

At common law, there is no doubt that she had no such capacity and, therefore, the inquiry is whether she has, by statute, been endowed with the power to make such a contract. That the act of 1870, incorporated in chapter C. of the General Statutes of 1872, page 482, section 3, did confer upon a married woman the power to make any contract which a feme sole could make, even to the extent of becoming surety for her husband, was settled by the cases of Pelzer, Rodgers & Co. v. Campbell , 15 S.C. 581, and Clinkscales v. Hall, Ibid. , 602. But at the very next session of the general assembly, which convened only a very few days after the decisions in the cases just recited were rendered, the law which had been thus construed...