Kohn v. Collison

• Decision Date: 01 April 1893
• Citation: 27 A. 834,15 Del. 109
• Court: Delaware Superior Court
• Parties: ARNOLD KOHN ET AL. v. SUSAN F. COLLISON

27 A. 834

15 Del. 109

ARNOLD KOHN ET AL. v. SUSAN F. COLLISON

Superior Court of Delaware, Kent County

April 1, 1893

Kent County, April Term, 1893.

CASE STATED.--This was an action on a promissory note by Arnold Kohn and others against Susan F. Collison, an indorser on the note for the accommodation of her husband. The facts were agreed to and stated for the opinion of the Court, as follows:

The parties mutually agree that this case shall be tried by the Court without the intervention of a jury. They also admit for the purposes of this suit, the following facts, to wit The suit is brought by the plaintiffs against the defendant as indorser of a promissory note, a true copy whereof, with the indorsements thereon, here follows: "$ 203.90. Dover, Del., Oct. 4th, 1891. Sixty days after date I promise to pay to the order of Susan F. Collison, at the Farmers' Bank of the State of Delaware, at Dover, two hundred and three 90-100 dollars, without defalcation. Value received. H C. Collison." Indorsed: "Pay to the order of Kohn Rosenheim & Co., No. 533 Market street, Philadelphia, Pa. Susan F. Collison." The due execution, indorsement, delivery, presentation, refusal of payment for want of funds, protest, and notice thereof is admitted. It is also admitted that the defendant, Susan F. Collison, at the time of the making and indorsing said note, was and is still a married woman, being the wife of the maker, H. C. Collison, and living with him; and that said note was given by the said H. C. Collison in part settlement of an antecedent indebtedness of the said H. C. Collison to the said plaintiffs, for goods sold and delivered to him in the course of his business as a merchant, and not on account or for the debt of the said defendant, or on account of her separate estate, and that said defendant was an accommodation indorser.

Judgment entered in favor of the defendant for costs.

J. Alexander Fulton and Van Dyke, for plaintiffs.

Edward Ridgely and Henry Ridgely, Jr, for defendant.

OPINION

LORE, C. J.

The question in this case is, can a married woman be held liable upon her accommodation indorsement of her husband's promissory note, made by him, and indorsed by her, in payment of merchandise sold to him in the course of his business and in no wise necessary to be made with respect to her own property? This involves the construction of the several acts relating to married women, as they stood on the 4th day of October, 1891, the date the note in question was made and delivered. It is conceded that at common law a married woman could make no such contract, and if such power now exists it is only because of statutes of this State enabling her to do so. In construing statutes, the chief rule is to ascertain the intention of the Legislature. The intent is the vital part, the essence of the law. Suth. St. Const., § 234, and cases cited. The titles of the several acts of Assembly on this subject are as follows: (1) Act March 17, 1865, (Vol. 12, c. 572), "An Act for the benefit of married women." (2) Act March 23, 1871, (Vol. 14, c. 80), "An Act to secure to married women certain of their own earnings." (3) Act April 9, 1873 (Vol. 14, c. 550), "An Act for the protection of women." All subsequent acts namely those of March 17, 1875; March 22, 1877; March 9, 1877, respectively (Vol. 15, cc. 165, 464 and 467), and those of February 27, 1879 (Vol. 16, c. 126), are only amendments to the previous statutes. In these titles the Legislature disclosed its intention to be to benefit, secure the earnings of, and to protect married women. We must gather this intent, however, from what is embodied and expressed in the statutes. Section 2 of the Act of April 9, 1873, says "that all debts contracted before marriage by the wife, or by her authority after marriage, shall be a charge on her real and personal property, and a judgment therefor may be recovered against her in her name." Rev. Code, p. 479. Section 4 declares "that any married woman may prosecute and defend suits at law or in equity for the preservation and protection of her property as if unmarried, or may do it jointly with her husband, but he alone cannot maintain an action representing his wife's property; and it shall be lawful for any married woman to make any and all manner of contracts necessary to be made with respect to her own property"--and suits may be maintained on such contract as though the party making them was a feme sole. Rev. Code, p. 479. Section 9, as amended, says "that where a married woman becomes the purchaser of real estate, she may secure the purchase money, or a part of it, by recognizance, bond, mortgage or otherwise as single women may, and her husband need not be a party, nor consent to such act of giving security; and in any case a married woman, above the age of twenty-one years, may give a bond with or without a warrant of attorney, just as if she were a feme sole--provided, however, that in case of her entering into recognizance, or giving bond or mortgage or making other contracts, for the payment of money, her husband shall not be liable unless he be a party thereto." Rev. Code, p. 479, Laws Del., vol. 16, p. 188. It will be observed that Section 5 charges a wife's real and personal property with her debts contracted by her before marriage or by her authority after marriage. Section 4 enables her to make any and all manner of contracts necessary to be made with respect to her own property, and she is liable thereon as if a feme sole; and Section 9 enables her to secure the purchase money of real estate purchased by her, by recognizance, bonds, mortgage or otherwise, as a single woman may, and in any case, if she be over twenty-one years of age, to give a bond with or without warrant of attorney as if she were a feme sole. But Section 1 says "that the real and personal property of a married woman shall be her sole and separate property, and the rents, issues and profits thereof shall not be subject to the disposal of her husband or liable for his debts." These are the material parts of the married woman's law so far as it relates to this case.

The intention is to be ascertained by considering the entire statute. Every part must be construed with reference to the leading idea or purpose of the whole instrument. Suth. St Const. § 239. Statutes in derogation of the common law are to be construed strictly. Id., §...