Johnston v. Gawtry

• Decision Date: 03 January 1882
• Citation: 11 Mo.App. 322
• Parties: T. W. JOHNSTON, Respondent, v. ANNE E. GAWTRY ET AL., Appellants.
• Court: Missouri Court of Appeals

11 Mo.App. 322

T. W. JOHNSTON, Respondent,

v.ANNE E. GAWTRY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 3, 1882.

1. The state in which a note is made payable and in which it is delivered in consummation of a bargain, is the place of the contract, though the note is executed in another state.

2. In an equity proceeding, until the contrary is shown, it will be assumed that the equity doctrine of a sister state is the same as that of the forum, where both have an equity jurisprudence.

3. In Missouri, as to her separate estate, a married woman is a feme sole; and in an action in this state to enforce her foreign contract against her separate estate situated here, her power to make it and its validity are governed by the laws of the forum.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.J. M. & C. H. KRUM, for the appellants: Sureties, indorsers, and guarantors are liable only according to the law of the place where their contract is made.--Whart. on Confl., sect. 439; Story on Confl. 823, sects. 278, 279; Aymar v. Sheldon, 12 Wend. 439. This contract could not be enforced by the courts in New Jersey, because the statute prohibits its making.-- Vankirk v. Skillum, 5 Vroom, 109; Peake v. Lahan, 6 C. E. Green, 269; Woolly v. Sargent, 3 Halst. 262; 2 C. E. Green, 234; 6 Vroom, 517.

BALDWIN, HAMILTON, & N. HOLMES, for the respondent: The place of delivery is the place where the note first became a complete contract, and is the place of the contract (wherever signed), and that the validity of the contract is to be governed by the law of that place (though the place of performance where it affects realty may prevail over the lex loci contractus, as will be shown below); and the law of the domicile or the place of signing, where that was in another state, is excluded.-- Lawrence v. Bassett, 5 Allen, 140; Lee v. Sellick, 33 N. Y. 615; Cook v. Litchfield, 5 Sandf. 337; Davis v. Clemson, 6 McLean, 622; Campbell v. Nichols, 33 N. J. L. 83; Dan. Neg. Inst., sect. 868; Story on Confl., sect. 242. And the same doctrine governs in case of a married woman in respect of her capacity to contract; the lex loci contractus (being that of the place of delivery) prevails over that of the domicile or place of signing, where that is in another state, and imposes an incapacity (as the lex rei sitæ also does where that is applicable).-- Pearl v. Hamborough, 9 Humph. 426; Nixon v. Halley, 78 Ill. 615; Adams v. Hanness, 62 Barb. 336; Bell v. Packard, 69 Me. 110; Story on Confl., sect. 103. If there were any positive or statute law in New York going to the validity of a married woman's contract of this kind, different from or in conflict with our own equity doctrines on the subject, the burden of proving such law would rest upon the defendant asserting it; but no proof was made of any such law of that state; and in the absence of such proof by the party asserting it, judgment passes according to our equity on the presumption that both laws agree.-- Monroe v. Douglass, 5 N. Y. 452; Chapin v. Dobson, 78 N. Y. 79; Westlake on Priv. Int. Law, art. 413; 11 Cl. & Fin. 85. On this matter, then, of the validity of the contract in equity, we have only to look to the decisions of our own courts. They are so explicit and decisive as to leave no room for question.-- Whitesides v. Cannon, 23 Mo. 457-472; Tuttle v. Hoag, 46 Mo. 43; Schaforth v. Ambs, 46 Mo. 116; Miller v. Brown, 47 Mo. 508. It is immaterial whether her contract charging her separate estate be for the benefit of her estate, or be as surety for her husband's debt, if such intention be proved.-- Whitesides v. Cannon, 23 Mo. 457. The wife has the absolute power and ownership of a feme sole over her separate estate in equity, and is competent to make contracts, or contract debts, that shall bind it in equity, whether such estate be named or referred to or not.-- Miller v. Brown, 47 Mo. 508; Whitesides v. Cannon, 23 Mo. 457. When it appears in evidence that a married woman put her signature to a note, and that she had, at the time, a separate estate settled upon her to her separate use, these facts alone raise a presumption that she contracted in reference to her separate estate, and intended thereby to bind or charge it for the payment of the obligation thus created.-- Tuttle v. Hoag, 46 Mo. 43; Schaforth v. Ambs, 46 Mo. 116; Morrison v. Thistle, 67 Mo. 600.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding in equity to subject to the payment of the debt mentioned in the petition, certain real estate in St. Louis, the property of defendant Anne E. Gawtry, a married woman. The petition sets forth that the real estate described was, by the father of Mrs. Gawtry, devised to the co-defendant, her husband, in trust for Mrs. Gawtry's separate use; that on May 1, 1877, at the city of New York, the defendants, William M. Gawtry, as principal, and Anne E. Gawtry, as surety, made their note, whereby they promised to pay to Harrison Johnston, two years after date, $10,077.69; that Anne E. Gawtry became surety by signing her name on the back of the note under the words: “This indorsement being intended to charge my separate estate for the payment of this note;” that defendant Anne, by signing as aforesaid, intended thereby to charge her separate estate, to contract in regard thereto, and to become surety for the co-maker of the note; that, being a married woman, she could not, by the common law of New York, make a contract binding upon her; but that, by the equity jurisprudence of that state, she had full capacity to contract as a feme sole in respect of her separate estate. The petition alleges a transfer of the note by indorsement and delivery before maturity, to plaintiff; and prays for relief in accordance with these allegations.

The answer of William M. Gawtry (against whom no fudgment is asked) is a general denial. The answer of Mrs. Gawtry is verified by her affidavit. She alleges that she resides in New Jersey, and has resided there continuously since 1872; that she signed her name on the back of the note, in New Jersey; that when she did so nothing was written over her signature; that she never wrote or authorized any one to write on the note the words set out in the petition which now appear on the note; and that these words are not her act or obligation. Further the answer is a general denial.

The note in question is as follows: “$10,077.69. NEW YORK, May 1, 1877. Two years after date I promise to pay to Harrison Johnston, or order, ten thousand and seventy-seven 69/100 dollars, for value received, with interest at the rate of seven per cent per annum, having deposited with him as collateral security for the payment of this note and two other notes dated this day, certain securities referred to in a receipt dated May 9, 1877, and signed by said Harrison Johnston. WM. M. GAWTRY.” On the back is written: “ This indorsement being intended to charge my separate estate for payment of this note. ANNE E. GAWTRY.” There is also an assignment without recourse to T. W. Johnston, or order, by the payee. And a writing by the clerk of the St. Louis Circuit Court showing that the note was filed in his office on May 30, 1879, and on May 8, 1880.

The only witness examined on behalf of defendants was defendant William M. Gawtry. There is an irreconcilable discrepancy between his testimony and that of the witnesses for plaintiff as to some matters which defendants claim to be material, and as to which it seems to be impossible that the contradiction could arise from defect of memory or mistake. Mrs. Gawtry was not examined. It does not appear why her deposition was not taken. Mr. Gawtry's testimony is that he and his wife and children reside, and have since 1867 resided, at Long Branch, New Jersey, and nowhere else; that, before that, they resided in New York, where he was in business up to 1872. Since then, he has been out of business, but has had desk room at 243 Broadway, New York. In the early part of May, 1877, witness had a settlement of accounts with Harrison Johnston, which was made by John H. Carnes, a common friend to both parties; and it was then agreed that Gawtry should give a note to Johnston for $10,077.69, dated May 1, 1877, at two years, bearing seven per cent interest, with the security of his wife's indorsement. Witness drew the note at his home at Long Branch, explained it to his wife, and, at his request, she indorsed it, nothing whatever, up to that time, being written on the back of the note. Witness then took the note to New York, and there, in the room where he had his desk, handed it to Carnes for Harrison Johnston, who was there in another room on the same floor. Carnes stepped out with the note, and returned in a few minutes saying that Johnston wanted written over Mrs. Gawtry's signature the words that now appear there. Witness doubted whether he ought to do this, but, on reflection, wrote the words in Carnes's presence and handed back the note. The receipt mentioned in the note was, he thinks, handed to him on the same day.

Mr. Gawtry's testimony is not in all respects consistent with itself. He says, for instance, that he never told his wife that he had written anything above her signature until compelled to do so by the fact that she was sued. In a previous deposition he had said that he had told her of this about three months before that. He says, however, that he concealed it from her for some time, and that she was very angry when she heard of it. The discrepancy as to the time when he spoke to her about it, is such as is often remarked in the testimony of the most truthful witnesses. He says positively that he never, after 1867, held himself out as living in New York; but it appears that, as late as 1872, he so described himself in legal instruments written and signed by him. This, he says, was for the greater convenience of acknowledging these papers in New York, where his office was.

It is not disputed that Mrs. Gawtry had...