Pelzer, Rodgers & Co. v. Campbell & Co.

• Decision Date: 16 November 1881
• Docket Number: CASE No. 1110.
• Citation: 15 S.C. 581
• Court: South Carolina Supreme Court
• Parties: PELZER, RODGERS & CO. v. CAMPBELL & CO.

15 S.C. 581

PELZER, RODGERS & CO.

v.CAMPBELL & CO.

CASE No. 1110.

Supreme Court of South Carolina.

Nov. 16th, 1881.

1. A creditor agreed to give his debtor, a partnership firm, further indulgence, if notes were given him for the amount due, signed by the firm and by C., the mother of one of the partners. The notes were signed in the partnership name, with a seal added, and were then taken to C. by her son, and afterwards delivered to the creditor with her signature and seal. Held, that the notes were supported by a sufficient consideration and binding upon C., and that parol evidence was inadmissible to show the understanding and intention of C. at the time of execution, or that she was ignorant of the indulgence given.

2. Even if the seal of the partnership was affixed to the notes, which were given for an existing partnership debt, without the authority of one of the partners, C. would not thereby be released from her obligation.

3. A married woman signed the notes of her son as surety, without any advantage to herself or her estate. Held, that she had legal capacity to bind herself, and was liable for the payment of the debt.

4. An act of the legislature may not be lightly declared unconstitutional; every part of the state constitution should, if possible, be so construed as to allow full force to Section 1, Article II., which vests plenary legislative power in the general assembly.

5. The general objects of a written constitution are to lay down fundamental principles and to limit the powers of government, but not to legislate on mere details.

6. While power to legislate upon a subject may be prohibited by a constitutional provision simply affirmative, as where such provision would be frustrated by legislation, yet the doctrine of exhaustive grant is not favored; and as to matters upon which the legislature had before been accustomed to act, its right to legislate further will not be taken away by implication, unless such implication is necessary.

7. This case distinguished from Duncan v. Barnett, 11 S. C. 333.

8. There is nothing in the constitution of 1868 which prevents the legislature from giving to married women rights and powers in addition to those conferred by that instrument; and, therefore, the provision in the act of 1870 ( Gen. Stat., ch. C., § 3,) authorizing a married woman to contract and be contracted with, in the same manner as if she were unmarried, is not unconstitutional.

9. Under this provision of the law, the personal contracts of a married woman are binding upon her, and upon them she may be sued to judgment.

Before PRESSLEY, J., Anderson, September, 1879.

Action commenced in 1879 by the plaintiffs against A. R. Campbell & Co. and Mary M. Campbell, upon the three notes set out in full in the opinion of this court. W. N. Mitchell was not served and A. R. Campbell put in no appearance. The three notes were given for a debt of A. R. Campbell & Co. to Pelzer, Rodgers & Co., then past due.

A. R. Campbell testified that his mother was not present when he settled with the agent of plaintiffs, and she knew nothing of the extension of time given to A. R. Campbell & Co. by the plaintiffs; that she was not a partner and was not owing the firm anything, and had no interest in it; that when he offered his mother as security plaintiffs' agent left, and he then went to see his mother and told her that he expected it would be necessary for her to sign a note with A. R. Campbell & Co., and her reply was, “Well, you can sign my name.” Then the following questions were put to witness: (1.) “Who signed this note?” Ans.“I did it for my mother.” [Question objected to by counsel and was ruled out.] (2.) “What authority did you have?” (3.) “Did she authorize you to sign her name as surety for yourself, individually, or for the firm of A. R. Campbell & Co.?” (4.) “Was she aware that any extension of time was granted to A. R. Campbell & Co. by the plaintiffs, on the consideration that she would sign the notes?” All of which questions were ruled out and exceptions noted.

It was not pretended that the plaintiffs had any knowledge of the matters between A. R. Campbell and his mother, in regard to his signature to the notes for her, which defendants offer to prove by A. R. Campbell, or that he signed them for her.

Other facts are stated in the opinion.

Mr. J. L. Orr, for appellants, cited Wells on Marr. Wom., §§ 345, 352, 357, 423, 455, 473, 530-2; Pom. on Rem., § 322, et seq.; Story on Part., § 117; Dud. 362; 2 McM. 349;46 N. Y. 175;3 Paige 648;3 Minn. 206; 5 Wait's Act. & Def. 231; 1 Kent 448; 1 Cranch 137;10 S. C. 348;11 S. C. 333;7 S. C. 102;Dwar. Stat. 605; 3 Wait's Act. & Def. 676; 1 Wait's Dig. 830, §§ 91, 94, 832, §§ 118-120; 6 L. & Eq. Rep. 364; 47 Ind. 302; 38 Penna. St. 146; 42 Id. 325;65 Barb. 159;36 Ind. 414;51 Miss. 599;43 Miss. 72;4 Allen 440;25 Wend. 658;15 Gray 328;23 N. J. Eq. 526;24 Mich. 199;63 Ill. 60;23 Iowa 397.

Mr. Joseph N. Brown, contra.

The opinion of the court was delivered by

MCGOWAN, A. J.

This was an action on three notes, under seal, as follows:

$735.88.

BELTON, S. C., May 17, 1878.

On the fifteenth of November next, we, or either of us, promise to pay to the order of Pelzer, Rodgers & Co., without off-set, seven hundred and thirty-five 88-100 dollars, value received. Witness our hands and seals.

A. R. CAMPBELL & CO. [L. S.]

MARY M. CAMPBELL. [L. S.]

$213.44.

BELTON, S. C., May 17, 1878.

On the first of December next, we, or either of us, promise to pay to the order of Pelzer, Rodgers & Co., without off-set, two hundred and thirteen 44-100 dollars, value received. Witness our hands and seals.

A. R. CAMPBELL & CO. [L. S.]

MARY M. CAMPBELL. [L. S.]

$746.21.

BELTON, S. C., May 17, 1878.

On the first of February next, we, or either of us, promise to pay to the order of Pelzer, Rodgers & Co., without off-set, seven hundred and forty-six 21-100 dollars, value received. Witness our hands and seals.

A. R. CAMPBELL & CO. [L. S.]

MARY M. CAMPBELL. [L. S.]

A. R. Campbell and W. N. Mitchell, doing business at Belton, Anderson county, under the name and style of A. R. Campbell & Co., became indebted to Pelzer, Rodgers & Co., who agreed to give indulgence for the time indicated in the notes if the mother of A. R. Campbell, one of the firm, would sign the notes as surety. Campbell took the notes and returned them, signed by Mrs. Campbell. The plaintiffs accepted them and gave the indulgence.

Mrs. Campbell was not connected with the firm of A. R. Campbell & Co., and signed the notes only to enable them to get indulgence on the debt. The complaint stated that Mrs. Campbell was a married woman and owned in her own right a farm in Anderson county, worth $2000. The principal defence was that Mrs. Campbell, being a married woman, had no legal capacity to make a personal contract upon which judgment could be recovered so as to bind her separate estate. The Circuit judge held that she had such capacity and was liable. The plaintiff had a verdict for the amount of the notes, and Mrs. Campbell appeals to this court upon the following exceptions:

“1. Because his Honor erred in not dismissing the complaint on the demurrer; that it did not state facts sufficient to constitute a cause of action to charge the separate estate of defendant.

2. A. R. Campbell signed the sealed notes in the firm name, without special authority. He could not bind W. N. Mitchell, the other partner, and Mrs. Campbell being surety, she is not bound by the contract, being different from that she signed. And his Honor erred in ruling that a sealed note now stands on exactly the same ground with an unsealed note in every respect, and that both Mitchell and Mrs. Campbell were bound.

3. Because his Honor erred in ruling that if the constitutional clause defining the rights and powers of married women had been under the legislative department, the legislature could not have enlarged or narrowed its provisions, but being under the miscellaneous department they could do so.

4. Because his Honor erred in not making the following charge, as requested by defendant's counsel: First. ‘As to separate estate of wife, the constitution declares that she can bequeath, devise or alienate it the same as if she were unmarried. The legislature cannot enlarge its provisions so as to allow a married woman to contract and be contracted with generally.’ Second. ‘The proof by plaintiffs being that the only consideration for signature of Mrs. Campbell was the extension of time to A. R. Campbell & Co., she is not bound.’ Third. “That nothing appearing in the contracts showing an intention to charge the separate estate of defendant or to alienate it, and there being no proof of an intention to charge it, it cannot be made liable for the debts of A. R. Campbell & Co.' Fourth. ‘That plaintiffs having failed to show any benefits or consideration accruing to this defendant or her separate estate from them, she is not bound by said notes.’

5. Because his Honor erred in holding that Mrs. Campbell was bound by the consideration of extension of time to A. R. Campbell & Co., when their own admissions show that Mrs. Campbell was not a party to any such agreement, and was not present when arrangements were made.

6. Because this defendant is not bound by any agreement or consideration between A. R. Campbell & Co. and plaintiffs, of which she had no knowledge.

7. Because this defendant having denied any consideration for her signing said note, before plaintiffs can make extension of time to A. R. Campbell & Co. sufficient consideration to bind her, they must show that she knew of that consideration before she signed the notes.

8. Because his Honor erred in ruling that a married woman could bind her separate property as a surety to a contract wherein she was not interested.

9. Because his Honor erred in holding that a married woman could bind her separate estate in a contract, where her separate estate derived no benefit therefrom, or where the contract...