Krouskop v. Shoutz

• Court: Wisconsin Supreme Court
• Writing for the Court: CASSODAY
• Citation: Krouskop v. Shoutz, 51 Wis. 204, 8 N.W. 241 (Wis. 1881)
• Decision Date: 08 February 1881
• Parties: KROUSKOP v. SHOUTZ AND HUSBAND.

51 Wis. 204

8 N.W. 241

KROUSKOP

v.SHOUTZ AND HUSBAND.

Supreme Court of Wisconsin.

Filed February 8, 1881.

Appeal from Richland county circuit.

June 12, 1878, the defendants, who were husband and wife, executed their promissory note, payable on or before December 1, 1878, to M. A. Buckley or order for $140, with interest at 7 per cent, after due. The plaintiff purchased the note before due, for value, of Buckley, who indorsed the same without recourse. Judgment was recovered by the plaintiff in justice court and also in the circuit court. On the back of the note, as offered in evidence, were written at the top these words: “This note to be extended, if desired by makers, on payment of the interest, as expressed, until January 1, 1879.”

It was claimed by the defendants, on the trial, that the words not in italics were put there at the time of making the note, but that the words in italics were put there subsequently, and without their knowledge or consent. Lower down on the back of the note was a printed blank property statement, filled up and signed by Mrs. Schoutz at the time, as follows:

“ Desiring to obtain credit as per within note, I hereby state that I own in my own name 93 acres of land in the county of Richland, state of Wisconsin, deed of which is recorded in the office of the register of deeds at Richland Center; that the said land is worth $4,000. The entire encumbrance on said lands is none. I also own in my own name, over and above my indebtedness, $1,000 worth of personal property, which is unencumbered by chattel mortgage or otherwise.

R. K. SHOUTZ.”

It was claimed by the defendants, on the trial, that instead of “$1,000” in the property statement it was only $600; that Mrs. S. owned all the farm except the homestead, and all the property on the farm; that she and her husband carried on the farm and dairy business thereon together, and supported the family therefrom; that the note was given for cloth for family use--four pieces of men's cloth, one piece of calico, one piece of factory, four dress patterns, and two shawls, etc.Black & Burnham and Vilas & Bryant, for respondent.

Hazelton & Provis, Eastland & Son, and Brooks & Dutcher, for appellants.

CASSODAY, J.

The first error assigned is the refusal of the court to allow the defendants to prove that the written indorsement on the back of the note had been changed, as above indicated. Assuming that the indorsement, at the time of making the note, was just as claimed by the defendants, to-wit, “This note to be extended if desired by makers,” yet it would seem to be without any legal significance. The indorsement contained no definite agreement. Not only were the admitted words without significance, but the words claimed to have been subsequently added were equally without significance, as they merely added an immaterial condition to words which were too indefinite to constitute a binding agreement.

In Blake v. Coleman, 22 Wis. 396, the indorsement, in effect, made the payment of the note conditional upon the sale of certain property at a fair price. Paine, J., there said: “It may be shown by parol that the indorsement was on the note at the time it was signed; and, that being so, it became part of it and turned it into a mere agreement. * * * As this condition qualified the note, the action could not be sustained without showing that it had been fulfilled.” This view of the law is undoubtedly correct; but after a careful examination of all the authorities cited by counsel, we fail to find any case going to the extent of holding this alleged indorsement to be a material qualification of the body of the note. Some of them are too remote in their bearing to require attention.

In State v. Stratton, 27 Iowa, 424, the memorandum was: “When the said Brown sells $50 worth of the water elevator, and pays $25, this note to be considered paid.” In Wait v. Pomeroy, 20 Mich. 425, the memorandum was: “If the machine should not be delivered, this note not to be paid.”

In Johnson v. Heagan, 23 Me. 329, the memorandum was to the effect that the note should not be collected until a person named took it up himself. In Barnard v. Cushing, 4 Met. 231, the memorandum was: “We agree not to compel payment for the amount of this note, but to receive the same when convenient for the promissors to pay it;” and this was signed by the payees. Thus, in each of the cases referred to, the memorandum contained an important qualification of the contract.

In Palmer v. Sargent, 5 Neb. 223, cited on the part of the defendants, the alleged memorandum was in these words: “This note is given upon condition;” and the court “held that it did not violate the instrument, inasmuch as they were entirely immaterial.” So, here, we must hold that, assuming the words “This note to be extended if desired by makers” were written upon the back of the note at the time of its execution and a part of it, yet they are too indefinite to constitute any material qualification of the agreement contained in the body of the note, and hence the subsequent addition of the words, “on payment of the interest as expressed until January 1, 1879,” was not a material alteration of the note. The alleged change in the property statement is immaterial, as the farm and $600 were just as good as a basis of credit as the farm and $1,000, and in that respect alone could it be material. The other errors assigned were all based upon the theory, that, as Mrs. Shoutz was a married woman, she could not bind herself nor her separate estate by joining with her husband in making the note in question in consideration of the goods received for the use of the family as stated. If counsel's theory is correct, then the instructions given were clearly erroneous; otherwise, not. Prior to the married woman's act--so called--the husband and wife were but one person in law, and the husband was that one. The common law not only implied a unity of person, but a unity of interest, and that too was represented by the husband.

In Conway v. Smith, 13 Wis. 125, the note was signed by Mrs. and Mr. Smith, and given for work done and materials furnished in the construction of a hotel upon a lot belonging to Mrs. Smith, and a majority of the court, per Paine, J., held “that our statute did give to married women, as necessarily incidental to the power of holding property to their own use, the power of making all contracts necessary or convenient to its beneficial enjoyment, and that such contracts are to be regarded as valid in law.” Page 136. The learned justice then added: “If it be established, then, that her contracts respecting her separate estate are valid in law, I think it necessarily follows that they may be enforced by legal remedies.” The court there, however, did not go to the extent of holding that the statute gave to a married woman an unlimited power of contracting, and that all her contracts were enforceable by action at law, but only that a limited power of contracting was conferred by the statute, and that such contracts as came within the limitation could be enforced by legal remedies, in contradistinction to equitable.

In Todd v. Lee, 15 Wis. 365, the action was in equity, to charge the separate estate of Mrs. Lee for the purchase price of goods sold to her for her use, as a trader in the millinery business, upon the faith and credit of her separate estate. The circuit court held that the plaintiffs had no legal or equitable claims against her or her separate estate; but the judgment was reversed by this court, and Dixon, C. J., said that “the contracts of a married woman, when necessary or convenient to the proper use and enjoyment of her separate estate, are binding at law. Conway v. Smith, 13 Wis. 125. All her other engagements stand as before the passage of the statute, good only in equity. The change from an equitable to a legal estate has not, with respect to them, enlarged her powers or removed the disability of coverture; but she remains as if still possessed of an estate in equity, without restriction as to her power of disposition. * * * The debts in question belong to the latter class. Within all the authorities, the separate estate of a married woman will be charged in equity with the payment of debts contracted for her benefit. In this case we need not inquire further, for that the debts in question were beneficial to Mrs. Lee will readily appear.” Page 380. In that case, this court approved Yale v. Dederer, 18 N. Y. 265, in which the wife signed a note as surety of the husband, and wherein it was held “that a married woman, having a separate estate, might bind it by her general engagements to pay debts contracted for the benefit of such estate, or on her own account, or for her benefit, upon the credit of it.” Pages 368, 369. But the court disapproved of Yates v. Dederer, 22 N. Y. 450, in which the wife was also a surety on the note of her husband, and wherein it was held that, “in order to create a charge upon the separate estate of a married woman, the intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the direct benefit of the estate itself.” Since that time the statutes of New York have been modified in some respects. We have no design of attempting to reconcile the numerous decisions of the New York courts upon this question, although we have carefully examined several from the court of appeals, but rather to preserve the consistency of our own. By way of reference we cite: Ins. Co. v. Babcock, 42 N. Y. 613;Maxon v. Scott, 55 N. Y. 247;Manhattan Co. v. Thompson, 58 N. Y. 80;Smith v. Dunning, 61 N. Y. 247;Yale v. Dederer, 68 N. Y. 329;McVey v. Cantrell, 70 N. Y. 295;Eisenlord v. Snyder, 71 N. Y. 45;The Bank v. Blake, 73 N. Y. 260;Woolsey v. Brown, 74 N. Y. 82;Cashman v. Henry, 75 N. Y. 103. Some of these cases are actions at law.

In Maxon v. Scott it was held that “the charge of a debt contracted by a...