Spearman v. Ward

• Decision Date: 03 January 1887
• Docket Number: 211,212,213,214
• Citation: 114 Pa. 634,8 A. 430
• Parties: Spearman et al. v. Ward et al
• Court: Pennsylvania Supreme Court

8 A. 430

114 Pa. 634

Spearman et al. v. Ward et al

Nos. 211, 212, 213, 214

Supreme Court of Pennsylvania

January 3, 1887

November 9, 1886

ERROR to the Court of Common Pleas No. 2, of Allegheny county: Of October Term 1886, Nos. 211, 212, 213 and 214.

These were four actions of assumpsit by John J. Spearman, Branton H. Henderson, Walter Pierce, Joseph Forker and John Phillips partners doing business as Spearman Iron Company against James Ward and Lizzie B. Ward his wife on four promissory notes of Eliza B. Ward.

Verdict for the plaintiffs in the sum of $5,230.66, subject to the opinion of the court on the following question of law reserved.

1. That at the time the notes in suit were given the defendant, Eliza B. Ward, was a married woman, resided with her husband at Niles, Ohio, and owned a rolling mill and carried the same on in her name.

2. That the notes in suit were given for iron purchased for the purposes of the mill in the manufacturing of sheet iron, and was made and payable in the state of Ohio.

3. That on the 27th of July, 1883, the defendant made a voluntary assignment for the benefit of creditors of all her property in the state of Ohio.

4. That she was one of the children of William H. Brown, a resident of the city of Pittsburgh, Allegheny county, Pennsylvania who died in 1876, and from her father's estate she received in 1881, in personalty and realty, about $900,000 the principal part of the said realty being in Pennsylvania.

5. That the statutes of Ohio, on the subject of married women, are the Act of March 30th, 1874, and the sections of the Revised Code of 1880, copies of which are annexed hereto and made part hereof.

The verdict is subject to the opinion of the court on the question of law reserved, to wit, whether under these facts and the law of Ohio in reference to married women, as evidenced by the statutes referred to and the decisions of the Supreme Court of Ohio, the plaintiffs are entitled to recover in this action at law, and have execution against defendants' property in this state.

Revised Code of Ohio for 1880. Section 4996. A married woman cannot prosecute or defend by next friend, but her husband must be joined with her, unless the action concerns her separate property, is upon her written obligation, concerns business in which she is a partner, is brought to set aside a deed or will, or to collect a legacy, or is between her and her husband.

Section 5319. When a married woman sues or is sued alone, like proceedings shall be had, and judgment may be rendered and enforced, as if she were unmarried, and her separate property and estate shall be liable for the judgment against her; but she shall be entitled to the benefit of all exemptions to heads of families.

An Act to amend Section 28 of the Code of Civil Procedure, passed April 18th, A.D. 1870. (O.L., Vol. 67, pp. 111 and 112.) Section 1. Be it enacted by the General Assembly of the state of Ohio, that section twenty-eight (28) of the code of civil procedure be amended so as to read as follows:

Section 28. Where a married woman is a party, her husband must be joined with her, except that when the action concerns her separate property, or is upon a written obligation, contract or agreement signed by her, or is brought by her to set aside a deed or will; or if she be engaged as owner or partner in any mercantile or other business, and the cause of action grows out of or concerns such business, or is between her and her husband, she may sue and be sued alone. And in all cases where she may sue or be sued alone, the like proceedings shall be had and the like judgment rendered and enforced in all respects as if she were an unmarried woman. And in every such case her separate property and estate shall be liable for any judgment rendered therein against her to the same extent as would the property of her husband, were the judgment rendered against him; provided that she shall be entitled to the benefit of all the exemption laws of the state to heads of families. But in no case shall she be required to prosecute or defend by her next friend.

Section 2. Said original section 28 is hereby repealed.

Section 3. This Act shall take effect and be in force from and after its passage.

The court entered judgment for the defendants non obstante veredicto, WHITE, J., filing the following opinion:

If the business had been carried on, and the notes given, in Pennsylvania no judgment could be obtained against Lizzie B. Ward. By the law of this state, which has been the law from its first settlement to this day, a married woman cannot enter into general mercantile or manufacturing business and cannot be held personally, or her estate be made liable for the payment of debts she may contract in the prosecution of such business. The policy of our law is to save her and protect her property from such hazardous adventures.

But the plaintiffs contend that by the laws of Ohio a married woman may engage in such business and is personally liable for her notes, and as the contract was legal there, it may be enforced against her and her property in this state.

I question the soundness of that position. It is true that the lex loci contractus governs as to the legality and construction of a contract. But the lex fori will not always enforce a contract because it was lawful where made. It will not be enforced by the courts of other states where the contract is against public morals or the public interests. The lex loci always governs as to the disability of minors, married women, etc., to contract; and sometimes it governs as to their ability to contract. But I do not think it should always govern. If so, the property in this state held by guardians, trustees, etc., might be swept away by contracts made in other states directly in conflict with our laws. Our laws save a married woman's property from the debts or contracts of her husband and from her own imprudent acts. Shall we enforce contracts that deprive her of this protection? We say she shall not engage in general business or bind herself or her estate by giving negotiable notes. If another state allows her to give such notes shall we enter judgment on them and permit a foreign creditor to sweep away her paternal patrimony, which we would not allow one of our own citizens to touch?

But passing that question, we come to the main contention in this case. It is denied, on part of defendant, that the laws of Ohio authorize married women to enter into general business and bind themselves personally for notes given; that the statutes on the subject (quoted in the reserved question) do not remove the common law disability of married women to make contracts (except in a few specified cases -- not such a case as this), but where they do engage in business, and execute notes in carrying it on, the property they have in the state may be made subject to the payment of them, in order to prevent a fraud upon creditors.

If that is the true construction of those statutes, then there is no general personal liability on which Mrs. Ward could be sued in this state; nor could her property here be made liable in either law or equity. The decisions of the Supreme Court of Ohio must decide the question.

In the first place, it may be observed that the sections of the code and the act embraced in the special verdict -- being the statutory provisions on which the plaintiffs rely -- refer primarily to the mode in which a married woman may sue or be sued, and incidentally to the effect of a judgment against her, "her separate property and estate shall be liable for the judgment." But there is not a word in these sections or act in the way of authorizing a married woman to make any contract. The argument of the plaintiffs is, that, because she may be sued in certain cases and a judgment obtained against her on which her property may be taken in execution, therefore she is authorized to make all such contracts and bind herself personally for all such debts. On this mode of reasoning (quoting the words of the sections), a married woman in Ohio may become a "partner" in any kind of business; may enter into any "written obligation, contract or agreement"; may "be engaged as owner or partner in any mercantile or other business"; and if so, then, in Ohio, all the common law disabilities of married women are removed.

That such was not the intention of the legislature of Ohio is manifest from another section of the code which expressly authorizes a married woman to "make contracts for labor and materials for improving, repairing and cultivating" her real estate, and leasing the same "for any period not exceeding three years": Sec. 3108.

The Supreme Court of Ohio has repeatedly held that the provisions of the code referred to, sections 4496 and 5319, "were not intended to enlarge or vary the liabilities of married women, but relate merely to the form of remedy": Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St. 136; Payne v. Thompson, decided March 23d, 1886, reported in The Weekly Law Bulletin and Ohio Law Journal of April 5th, 1886. A married woman's common law disability to make contracts, remained in all cases, except where directly removed by statute. Accordingly it was held in Levi v. Earl, 30 Ohio St. 167, she could not enter into partnership with her husband, and re-affirmed in Payne v. Thompson, supra; in Alexander v. Morgan, 31 Ohio St. 551, it was decided that a partnership, in which an unmarried woman was engaged, was dissolved by her marriage, because a married woman has no capacity to engage in business as a partner. In McClelland v. Bishop, 42 Ohio St. 113, it was held that a joint note of husband and wife was the valid obligation of the husband alone.

The proceeding in Ohio, under the ...