State Sav. Bank of St. Joseph, Missouri v. Scott

• Decision Date: 23 January 1880
• Citation: 4 N.W. 314,10 Neb. 83
• Parties: STATE SAVINGS BANK OF ST. JOSEPH, MISSOURI, PLAINTIFF IN ERROR, v. WINCHESTER D. SCOTT AND SARAH A. SCOTT, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

4 N.W. 314

10 Neb. 83

STATE SAVINGS BANK OF ST. JOSEPH, MISSOURI, PLAINTIFF IN ERROR, v. WINCHESTER D. SCOTT AND SARAH A. SCOTT, DEFENDANTS IN ERROR

Supreme Court of Nebraska

January 23, 1880

ERROR to the district court for Nemaha county. Tried below before POUND, J.

REVERSED AND REMANDED.

T. L Schick, for plaintiff in error, in support of the point that a married woman who signs a note is presumed from that fact to intend to charge her separate estate with its payment cited: Webb v. Hoselton, 4 Neb. 308. Claflin v Van Wagoner, 32 Mo. 252. Schafroth v. Ambs, 46 Mo. 114. Whitesides v. Cannon, 23 Mo. 457. Bank v. Taylor, 62 Mo. 338. Burnley v. Thomas, 63 Mo. 390. Deering v. Boyle, 8 Kan. 525. Wicks v. Mitchell, 9 Kan. 80. Miner v. Pearson, 16 Kan. 27. Collins v. Rudolph, 19 Ala. 616. Ozley v. Ikelheimer, 26 Ala. 332. Baker v. Gregory, 28 Ala. 544. Jarmin v. Wilkerson, 7 B. Mon. 293. Bell v. Keller, 13 B. Mon. 381. Philips v. Graves, 20 Ohio St. 371. The contrary intention may be shown, but it must appear from the instrument itself and cannot be shown by parol. Kimm v. Weippert, 46 Mo. 532. Bank v. Taylor, 62 Mo. 338. Jarmin v. Wilkerson, 7 B. Mon. 293. Wicks v. Mitchell, 9 Kan. 80. Selden J. in Yale v. Dederer, 22 N.Y. 456. The language of the statute is that a married woman may enter into any contract with reference to her separate property, and it would narrow its meaning much to hold that the contract must have relation to or concern the property. The term with reference to is synonymous with having a view toward. Webster's Dic. We therefore submit that whenever a contract is made in which a married woman receives or obtains credit the contract is made with a view toward her separate estate, which alone obtains her credit.

W. T. Rogers, for defendants in error, cited: Davis v. First National Bank, 5 Neb. 242. Hale v. Christy, 8 Neb. 264. Wooster v. Northrup, 5 Wis. 245. Erwin v. Downs, 15 N.Y. 575. De Vries v. Conklin, 22 Mich. 255. West v. Laraway, 28 Mich. 464. Vankirk v. Skillman, 34 N. J., Law 113. Rodemeyer v. Rodman, 5 Iowa 426. Jones v. Crosthwaite, 17 Iowa 973. A married woman has no power to enter into a contract upon which a personal judgment might be given against her. Mallett v. Parham, 52 Miss. 922. Cary v. Dixon, 51 Miss. 599. Pippen v. Wesson, 74 N.C. 442. And the execution of a promissory note is no evidence of an intention to charge her separate estate. Brick v. Scott, 47 Indiana, 302. Hodson v. Davis, 43 Indiana, 258.

OPINION

MAXWELL, CH. J.

The defendants executed and delivered to C. L. Keim & Co. a promissory note, of which the following is a copy:

"$ 426.70.

FALLS CITY, NEB., July 7, 1877.

"Ninety days after date, we, or either of us, promise to pay C. L. Keim & Co., or order, four hundred and twenty-six 70/100, for value received, negotiable and payable without defalcation or discount, and interest from date until paid, at the rate of twelve per cent, and ten per cent attorney fees, if collected by suit. Payable at the Falls City bank, Falls City, Nebraska.

"W. D. SCOTT,

"S. A. SCOTT."

The note was transferred before due, for a valuable consideration, to the plaintiff, without notice of any defense. In 1879 the plaintiff instituted an action on the note in question against the defendants in the district court of Nemaha county. The defendants answered plaintiff's petition, alleging, 1st, that the note was obtained for an usurious consideration; 2d, that S. A. Scott was the wife of W. D. Scott. On the trial of the cause the court found for the defendants, and a motion for a new trial having been overruled, dismissed the action. The plaintiff brings the cause into this court by petition in error.

The first question presented by the answer has already been passed upon by this court in the case of Wortendyke v. Meehan et al., 9 Neb. 221, 2 N.W. 339. Here it is clearly shown that during the month of July, 1877, the plaintiff purchased the note in question, properly endorsed, of C. L. Keim & Co., for "the face of said note less ten per cent interest, for the immature time," and that the plaintiff had no knowledge that said note was usurious. Such being the case, the plaintiff comes clearly within the rule laid down in Wortendyke v. Meehan, and may recover thereon.

The court found that S. A. Scott signed the note in question as surety for her husband, and was not liable thereon. This is assigned for error.

In the case of Davis v. The First National Bank of Cheyenne, 5 Neb. 247, this court uses the following language: "The statute confers on her [the wife] the right and power to make legal and binding contracts; it gives her the legal right to sue, and makes her legally liable to be sued on her contracts, in the same manner as if she were unmarried. * * * * But the rule must be observed, that all such contracts of a feme covert must be with reference to, and upon the faith and credit of, her separate estate." And the same doctrine is affirmed in Hale v. Christy, 8 Neb. 264...