R.S. Barbee & Co. v. Bevins, Hopkins & Co.

• Decision Date: 05 June 1917
• Citation: 176 Ky. 113,195 S.W. 154
• Parties: R. S. BARBEE & CO. ET AL. v. BEVINS, HOPKINS & CO. ET AL.
• Court: Kentucky Court of Appeals

195 S.W. 154

176 Ky. 113

R. S. BARBEE & CO. ET AL. v. BEVINS, HOPKINS & CO. ET AL.

Court of Appeals of Kentucky.

June 5, 1917

Appeal from Circuit Court, Pike County.

Consolidated actions by R. S. Barbee & Co. and others against Bevins Hopkins & Co. and others. From the judgment dismissing the petition as to two of defendants, plaintiffs appeal. Reversed, with directions.

Hobson & Hobson and Childers & Childers, all of Pikeville, for appellants.

W. K Steele and J. S. Cline, both of Pikeville, for appellees.

CLARKE J.

In September, 1913, R. S. Barbee & Co., then engaged in the general mercantile business in Williamson, W. Va., sold their business to Bevins, Hopkins & Co., a firm composed of J. B Bevins, Harrison Bevins, and Ester Hopkins, each of whom signed, as principals, notes given to Barbee & Co. in part payment for the mercantile business. Before delivery of the notes each of them was indorsed by Ella Bevins, wife of J. B Bevins, and Minnie Hopkins, wife of Ester Hopkins, at their homes in Pike county, Ky. and turned over to J. B. Bevins, who carried them across the state line to Williamson, W. Va., and delivered them to Barbee & Co. The notes were payable at the National Bank of Commerce, Williamson, W.Va. One of these notes, for $1,850, was discounted by Barbee & Co. before due to the National Bank of Commerce of Williamson, W.Va. The other note, for $1,568.29, was retained by Barbee & Co. The notes not being paid when due, separate suits were brought thereon by the respective owners in the Pike circuit court, seeking to enforce collection against Mrs. Bevins and Mrs. Hopkins. Mrs. Hopkins defended on the ground that she was an infant when she signed the notes, and this defense is made out by her proof. Mrs. Bevins pleaded that she signed the notes as surety, and, being at the time a married woman, is not liable for their payment. This is not denied by Barbee & Co. and the bank. The cases were consolidated and tried together, and the petitions were dismissed as to Mrs. Hopkins and Mrs. Bevins, from which judgment this appeal is prosecuted by both Barbee & Co. and the bank, in so far as they were denied a judgment against Mrs. Bevins; but they do not complain of the judgment dismissing the petition against Mrs. Hopkins, as they concede the validity of her defense of infancy. There is no dispute as to any of the facts, and the two law questions presented are: (1) Are the notes in question covered by the law of West Virginia or that of Kentucky? (2) Will the law of West Virginia, under which Mrs. Bevins is liable on the note, be enforced in Kentucky.

1. It is insisted for appellee Mrs. Bevins that, since she signed the notes in Pike county, Ky. the laws of this state apply; but it appears that, after signing the notes, she delivered them to her husband, J. B. Bevins, who took them to West Virginia, where they were delivered, and where they were by their terms payable. The contract was not consummated until the notes were delivered in West Virginia, where they were also payable, and the contract was both made and to be performed in that state. It is therefore clear that the laws of West Virginia, and not those of Kentucky, apply. Young v. Harris, 14 B. Mon. 556, 61 Am. Dec. 170; Thompson v. Taylor, 66 N. J. Law, 253, 49 A. 544, 54 L. R. A. 585, 88 Am. St. Rep. 485.

2. Counsel for appellees seemingly concede that the law of West Virginia is applicable to the notes, and the validity of the contract under that law is proven; but they insist most strenuously that the contract shall not be enforced here because contrary to public policy of this state, as declared by section 2127, Kentucky Statutes, which exempts a married woman from liability as surety unless her personal estate shall have been set apart for that purpose by a deed of mortgage or other conveyance, it being conceded that Mrs. Bevins did not so set apart any of her property. It is true that it is against the public policy of this state, as declared by the above statute, to permit a married woman, by a contract made and to be performed here, to bind her property as surety for the debt of another, except by mortgage or other conveyance; but it does not follow necessarily that it is against the public policy of this state to enforce such a contract when valid where made, because there may be, and often is, a difference in the public policy of the state with reference to the execution of a contract and to its enforcement. For...