Smith v. Bond

• Decision Date: 03 November 1898
• Citation: 76 N.W. 1062,56 Neb. 529
• Parties: SMITH v. BOND ET AL.
• Court: Nebraska Supreme Court

56 Neb. 529

76 N.W. 1062

SMITH

v.BOND ET AL.

Supreme Court of Nebraska.

Nov. 3, 1898.

Syllabus by the Court.

1. In an action against a married woman on a note executed by her as surety for another, coverture is a complete defense, unless it be shown that such note was made with the intention on her part of binding her separate estate for its payment.

2. Evidence examined, and held sufficient to sustain the finding of the trial court that the note in suit was not made with reference to, nor upon the credit of, defendants' individual property.

Error to district court, Lancaster county; Tibbets, Judge.

Action by Pamelia Smith against M. I. Bond and Mrs. H. C. Smith. Judgment for defendant Mrs. Smith, and plaintiff brings error. Affirmed.

Thos. Ryan, for plaintiff in error.

B. F. Johnson, for defendants in error.

SULLIVAN, J.

This was an action on a promissory note executed by M. Isabel Bond, as principal, and Mrs. H. C. Smith, as surety, to the plaintiff, Mrs. Pamelia Smith. The defendant Bond made no appearance in the case. H. C. Smith answered, pleading coverture. When the cause came on for trial, a jury was waived, and the court, having heard the evidence, found generally in favor of the answering defendant, and specifically that, “prior to the signing of the note sued upon in this action, the plaintiff stated to the defendant H. C. Smith that she loaned the money, the consideration for which this note was given, to the defendant M. Isabel Bond upon the responsibility of the defendant H. C. Smith.” A motion for a new trial was overruled, and judgment rendered against the plaintiff on the general finding. By petition in error the record is presented to this court for review.

It was established beyond controversy at the trial that the note in suit was given for money loaned by the plaintiff to M. Isabel Bond, and that H. C. Smith was a married woman at the time she signed it. The transaction in question having no relation to the separate estate or business of the defendant Smith, she is not liable on the note unless she signed it intending thereby to bind her individual property for its payment. Banking Co. v. Wright, 53 Neb. 574, 74 N. W. 82;Association v. Stenger, 54 Neb. 427, 74 N. W. 846;Bank v. Smith (Neb.) 75 N. W. 51. The only controverted question in the case, then, was whether Mrs. Smith, at the time she signed the note, intended to make it a charge upon her separate estate. The trial court found that she had no such intention,...