Smith v. Spalding

• Decision Date: 02 May 1894
• Citation: 58 N.W. 952,40 Neb. 339
• Parties: SMITH v. SPALDING ET UX.
• Court: Nebraska Supreme Court

40 Neb. 339

58 N.W. 952

SMITH

v.SPALDING ET UX.

Supreme Court of Nebraska.

May 2, 1894.

Syllabus by the Court.

1. A married woman, in this state, may contract as surety for her husband.

2. The extension of time of payment of her husband's past-due indebtedness is a sufficient consideration to support her contract, as his surety, for such debt.

3. An objection on the ground that there is another action pending for the same cause must be made before a trial on the merits, or it will be waived.

4. Parties will, as a rule, be restricted in this court to the theory upon which the cause was prosecuted or defended in the court of original jurisdiction.

Error to district court, Red Willow county; Cochran, Judge.

Action by Samuel R. Smith against Morrillo A. Spalding and wife. Judgment against the husband, and in favor of the wife. Plaintiff brings error. Reversed.J. Byron Jennings and Walter A. Leese, for plaintiff in error.

W. S. Morlan, for defendant in error.

POST, J.

Defendant in error (a married woman) signed the note in controversy in order to obtain an extension on the past-due indebtedness of her husband to the John D. Zernitz Company. In order to secure said note, she, at the same time, and as part of the same transaction, executed a mortgage on certain real estate (her separate property) in Franklin county, in which mortgage her husband joined. She also signed the following property statement:

“February 6/86.

For the purpose of securing an extension of time on a certain book account of $325.95, and now due the John D. Zernitz Co., of Chicago, Ill., we hereby make the following statement: That the house and lot, of 1 1/2 acres of ground, which is located in the town of Riverton, Franklin county, Neb., on which we are about to give a mortgage to the above John D. Zernitz Co. for $325.95, and said property being the same as described in said mortgage, is free and clear from all incumbrances, of any kind whatever.

M. Ellen Spalding.

Merillo A. Spalding.

B. J. Ryan.”

The mortgage here mentioned was subsequently foreclosed by decree of the district court of Franklin county, and the mortgaged property sold, leaving a balance due on said note. Plaintiff in error, to whom said claim had in the mean time been assigned, then brought this action in the district court of Red Willow county, against both makers of the note, to recover the balance due thereon. At the trial the district court, on its own motion, gave the following instruction: “If you find from the evidence that the defendant M. Ellen Spalding executed the note introduced in evidence in this action, and that she signed the same merely as surety for her husband, and the consideration of said note being an antecedent debt of her husband, for the payment of which she was in no way liable, then your verdict should be for the defendant M. Ellen Spalding.” The giving of this instruction is error, for which the judgment must be reversed. A married woman may, in this state, become surety for her husband. Stevenson v. Craig, 12 Neb. 464, 12 N. W. 1. The extension of time on her husband's past-due indebtedness was a sufficient consideration. Stew. Husb. & Wife, 136; Green v. Scranage, 19 Iowa, 461;Low v. Anderson, 41 Iowa, 476.

The plaintiff requested the following, among other instructions, which was refused: “The material question for you to settle from the evidence in this case is, did the parties, at the time the note was executed, contract with reference to, and upon the faith and credit of, the separate estate of the defendant M. Ellen Spalding. If they did so contract, then she would, under the law of this case, be liable for the amount due on the note.” This...