Stenger Benev. Ass'n v. Stenger

• Decision Date: 08 April 1898
• Parties: STENGER BENEV. ASS'N v. STENGER.
• Court: Nebraska Supreme Court

54 Neb. 427

74 N.W. 846

STENGER BENEV. ASS'N

v.STENGER.

Supreme Court of Nebraska.

April 8, 1898.

Syllabus by the Court.

1. The disability of a married woman to enter into contracts still exists in this state, except to the extent it has been removed by legislative enactments.

2. She may contract with parties generally, or with her husband; but it must be in reference to her separate property, trade, or business, or upon the faith and credit thereof, and with the intent to charge her separate estate.

3. Whether the contract is of the nature just indicated is a question of fact.

4. In an action predicated upon promissory notes executed and delivered by a woman to her husband during the existence of the marital tie, if the coverture is pleaded in defense, and admitted or proved, it devolves on the plaintiff to show that the contracts were with reference to the separate property of the wife, upon the credit of, and with intent to bind, the same.

5. A relation of trust and confidence arises and continues with the existence of the marital tie between parties, and where the contract of the wife to or with the husband is sought to be enforced, and the coverture is interposed as a defense, coupled with a plea of the exercise by the husband of undue influence on the wife in obtaining the execution of such contract, the burden is on the plaintiff to establish that no unfair advantage was taken, or undue influence exercised, by the husband.

6. Where the trial was to the court, the admission of incompetent testimony furnishes, on review, no sufficient ground for the reversal, if the finding and judgment must for other reasons be affirmed.

Error to district court, Platte county; Marshall, Judge.

Action by the Stenger Benevolent Association against Caroline Stenger. Judgment for defendant, and plaintiff brings error. Affirmed.

Albert & Reeder, for plaintiff in error.

Whitmoyer & Gondring and A. M. Post, for defendant in error.

HARRISON, C. J.

In its petition filed in this action, commenced in the district court of Platte county, the plaintiff pleaded its corporate character and existence, and, further, that the defendant had executed to Martin Stenger certain specifically described promissory notes, which had been by him indorsed and transferred to the plaintiff; that there had been a failure to pay certain sums of interest at their maturity, as it was provided should be done in an agreement which had been executed by the defendant in regard to payment of interest on the amount of the indebtedness evidenced by the notes,--it being stated that by mistake or omission the intended contract relative to interest had not been expressed in the notes, and the agreement to which we have alluded was subsequently executed and delivered by the defendant to Martin Stenger, and by him transferred to the plaintiff. Judgment was asked for alleged past-due interest in the sum of $3,200, and interest thereon. The answer was as follows: “The defendant, in answer to the petition of the plaintiff, denies that said plaintiff was, or now is, incorporated or is a corporation, and denies that plaintiff is entitled to receive the money upon said notes described in plaintiff's petition, or any part thereof, and denies that at the time said notes were executed it was the intention of the defendant that the interest mentioned in said notes should be paid annually, and denies that the plaintiff is the owner and entitled to receive the money upon the contract, a copy of which is marked ‘Exhibit A’ in plaintiff's petition, or any part thereof. The defendant, further answering plaintiff's petition, alleges that, before and at the time said promissory notes and contract were executed, said defendant was, and now is, the wife of said Martin Stenger, to whom said notes were made and delivered; said notes and contract for the payment of interest annually did not concern her separate property, trade, or business; that at the time of the execution and delivery of said notes and contract the defendant was not indebted to said Martin Stenger in any sum whatever; that no consideration whatever was given for said notes and contract for payment of interest annually; that said notes and contract for payment of interest annually were given solely and only because said Martin Stenger demanded, required, and insisted that she should make and give said notes and contract to him, said Martin Stenger, and threatened her that, if she did not make and give up said notes and said contract to him, he would break up the household and family ties, that he would commence proceedings for a divorce from her, and do all he could against her, on account of which she was much worried, and suffered great fear and distress, and said notes and said contract were made and delivered to said Martin Stenger to avoid constant worry, fear, and distress that he was inflicting upon her, and not with a view or intention of charging her separate property, trade, or business, or with reference thereto, nor upon the faith and credit of her separate property, trade, or business; that said notes and said contract for the payment of interest annually were transferred and delivered by said Martin Stenger to said plaintiff as a gift, and without valuable consideration therefor.” To this there was the following reply: “Comes now the plaintiff herein, and, for reply to the answer of the defendant herein, denies each and every allegation thereof not hereinafter specifically admitted. The plaintiff admits that, at the time of the execution and...