Miller v. Shields

• Decision Date: 29 May 1890
• Citation: 24 N.E. 670,124 Ind. 166
• Parties: Miller v. Shields.
• Court: Indiana Supreme Court

124 Ind. 166

24 N.E. 670

Miller

v.Shields.

Supreme Court of Indiana.

May 29, 1890.

Appeal from circuit court, Jackson county; Thomas J. Collins, Judge.

Applewhite & Applewhite, for appellant. B. H. Burrell, for appellee.

Berkshire, C. J.

This action is bottomed on a promissory note executed by the appellee to the appellant's testator. The appellee answered in three paragraphs- First, the general denial; second, want of consideration; third, coverture and suretyship. The appellant replied in general denial. The cause was submitted to the court for trial, and, after the evidence had been concluded, a finding was returned in favor of the appellee. The appellant filed a motion for a new trial, which was overruled by the court, and an exception saved, and judgment rendered for the appellee. The record presents but one question for our consideration, is the finding of the court sustained by sufficient evidence? Notwithstanding the well-established rule of this court that it will not disturb the judgment of a trial court because the evidence which supports it is weak and unsatisfactory, we are compelled to reverse the judgment here involved, for the reason that there was a failure of proof as to one vital fact. In Indiana, since the year 1881, the disabilities which the common law imposed upon married women, as to the making of contracts with certain limitations, have been removed. Sections 5115 et seq., Rev. St. 1881. As this court has frequently announced, ability, and not disability, is the rule as to the capacity of married women to enter into contracts. Vogel v. Leichner, 102 Ind. 55, 1 N. E. Rep. 554. In this case it is said: “By the more comprehensive enactment of 1881, above referred to, the legislature abrogated all the legal disabilities of married women, except such as are expressly saved in the act.” In Rosa v. Prather, 103 Ind. 191, 2 N. E. Rep. 575, it is said: “The three most notable respects in which the disability of coverture was felt at common law were in the inability of the wife to sue, in her inability to enter into a contract, and in her inability to control her own property. These separate disabilities have all been in general terms removed. * * * The disabilities upon these and other subjects which still remain are special and exceptional, and no longer constitute a part of a category of general disabilities.” In Arnold v. Engleman, 103 Ind. 512, 3 N. E. Rep. 238, it is said: “The question here is as to the sufficiency of the facts pleaded to avoid the disability of coverture. We have decided that in cases of married women ability is now the rule, and disability the exception. * * * This is the only reasonable interpretation of our statute, for its language is broad and comprehensive. Section 5115 provides that ‘all the legal disabilities of married women to make contracts are hereby abolished, except as herein otherwise provided.’ This confers a general power to make executory contracts, except such as are prohibited by the statute. There is no provision prohibiting married women from purchasing wearing apparel and executing notes for its value. It is true that in section 5117 it is provided that she may make contracts concerning her separate personal property, but this is merely permissive and cumulative, and is not a limitation upon the general power conferred by the section quoted. It would be a great stretch to affirm that, in buying personal property, she was not contracting concerning it; and, if the provision found in section 5117 stood alone, it would be quite doubtful whether a married woman's contract for the purchase of wearing apparel for herself were not valid, but the provisions of section 5115 make it very clear that such contracts are valid and enforceable. * * * Our conclusion is that a married woman may purchase wearing apparel for herself, and that notes executed by her for the price which she agreed to pay for it are valid, and may be enforced.” See Barnett v. Harshbarger, 105 Ind. 410, 5 N. E. Rep. 718. In McLead v. Insurance Co., 107 Ind. 394, 8 N. E. Rep. 230, the court said: “The notes and mortgage were jointly executed by the appellants on the 18th day of November, 1882, at which time the act of April 16th, 1881, ‘concerning husband and wife,’ which took effect on September 19, 1881, was a part of the law of this state.” Section 5115 of said statute is then set out, and the court goes on to say: “In Arnold v. Engleman, 103 Ind. 512, 3 N. E. Rep. 238, after quoting section 5115 as above, the court said: ‘This confers a general power to make executory contracts, except such as are prohibited by the statute.’ * * * In section 5117, Rev. St. 1881, it is provided that a married woman ‘shall not enter into any executory contract to sell or convey or mortgage her real estate, nor shall she convey or mortgage the same, unless her husband join in such contract, conveyance, or mortgage.’ Section 5119, Rev. St. 1881, reads as follows: ‘A married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner, and such contract as to her shall be void.”’ See Lane v. Schlemmer, 114 Ind. 296, (bottom of page 301) 15 N. E. Rep. 454, 456. In Phelps v. Smith, 116 Ind. 387, (at bottom of page 402) 17 N. E. Rep. 602, 19 N. E. Rep. 156, it is said: “The decision in Phipps v. Sedgwick, 95 U. S. 3, if conceded to be otherwise relevant, is not in point, because the court placed its judgment upon the disability created by coverture; saying that ‘such a proposition would be a very unjust one to the wife, still under the dominion, control, and personal influence of her husband.’ Manifestly, this rule cannot apply in jurisdictions where a married woman possesses nearly all of the rights of a feme sole, and where ‘ability is the rule, and disability the exception.”’ In the quotation which we have made from Arnold v. Engleman, supra, said section 5115 is set out, and we need not copy it again. The exception involved in the case now under consideration is found in section 5119, which section appears in the quotation from McLead v. Insurance Co., supra, and need not be again quoted.

It is a general rule of pleading, applicable alike to civil actions and criminal prosecutions, that, when an exception or proviso is embodied in the enacting clause of a statute or contract, it must be negatived in the complaint or indictment; but if it is found in a subsequent distinct clause or section of the statute or covenant, as is the case with the statute before us, then there need be no negation. Gould, Pl. 514, 515; Steph. Pl. (Heard,) 443, 444. In Com. v. Jennings, 121 Mass. 47, Gray, C. J., speaking for the court, said: “On the other hand, it appears to us to be established, by a great preponderance of authority, that, when an exception is not stated in the enacting clause otherwise than by merely referring to other provisions of the statute, it need not be negatived, unless necessary to a complete definition of the offense.” In Hart v. Cleis, 8 Johns. 35, the court said: “The action below was brought for a penalty incurred under the sixth section of the act concerning slaves and servants. * * * The special causes of demurrer stated upon the record are not material; but the defendant relies upon what he alleges to be defects in substance in the declaration, viz., that the plaintiff does not negative the excepted cases in the section, and that he does not aver that the defendant was master of the slave, or acted with his privity. It is a sufficient answer to the first objection that the exception forms no part of the plaintiff's title or right of action, but is merely matter of excuse for the defendant. The excepted cases are not incorporated into the body and substance of the enacting clause, but are given as exceptions, and the instances are not specified in that, but in the subsequent, section.” See Com. v. Tuttle, 12 Cush. 502;Com. v. Hill, 5 Grat. 682; State v. Miller, 24 Conn. 522; U. S. v. Cook, 17 Wall. 168;State v. Abbey, 29 Vt. 60;Fleming v. People, 27 N. Y. 329;Harris v. White, 81 N. Y. 532. Our own cases are to the same effect. Russell v. State, 50 Ind. 174;State v. Maddox, 74 Ind. 105;Mergentheim v. State, 107 Ind. 567, 8 N. E. Rep. 568.

The action in this case was upon a promissory note executed by the appellee alone. The complaint did not allege that the appellee was under coverture, but, had this fact appeared therein, we think it would have been good, in the absence of an allegation in negation of section 5119, supra. We think so, in view of the rule as supported by the authorities cited above. The precise question has never been before this court. It was held in the case of Vogel v. Leichner, supra, that, where the husband and wife jointly execute a promissory note and a mortgage upon the separate real estate of the wife, the burden of proof was on the plaintiff seeking to foreclose the mortgage to show that she was liable. The foregoing case was followed in the case of Cupp v. Campbell, 103 Ind. 213, 2 N. E. Rep. 565. In that class of cases the presumption which naturally arises because of the peculiar relation that exists between husband and wife is that he is the principal debtor, and she but his surety; and hence it was well ruled in those cases that the obligation could not be enforced against her, nor against her property specifically pledged for its payment, it not appearing affirmatively that she was a principal debtor. But when a married woman, as she has full power to do under the married woman's act, executes her individual note, whereby she promises to pay a given sum of money, the question is very different. No presumption such as that announced in the cases above can prevail. To hold that when a married woman executed her individual...