Stowell v. Grider

• Decision Date: 22 January 1887
• Parties: STOWELL & HEINZ v. GRIDER
• Court: Arkansas Supreme Court

2 S.W. 786

48 Ark. 220

STOWELL & HEINZ v. GRIDER

Supreme Court of Arkansas

January 22, 1887

APPEAL from Mississippi Circuit Court, in Chancery, Hon. W. H. CATE Judge.

Decree affirmed.

H. M McVeigh, for appellants.

Appellants insist that the first suit was dismissed by them under an express agreement between them and appellees that the appellee, Sue M. Grider, should execute said note, so as to bind her separate estate, her husband, W. H. Grider, being insolvent; and that, in consideration alone of the execution of this note by appellee, Sue M. Grider, were they induced to dismiss the first suit and make a reduction of $ 100 from their original account.

There is no controversy as to the execution of the note by the appellee, Sue M. Grider. And appellants contend that they were led to believe that she executed the same with the intention and for the purpose of binding her separate estate so as to receive the benefit of the dismissal of the former suit and the reduction of $ 100 in her account, and that she cannot avoid payment of her note under the shield of coverture. Challer v. Temple, 39 Ark. 238; Dobbin v Hubbard, 17 Ark. 189.

This intention to charge her separate estate may be inferred. Challer v. Temple, 39 Ark. 238; 5 Am. Rep., 675.

Again, the proof shows that $ 80.90 of the account which was closed by the note in controversy was for goods, wares and merchandise which had been purchased by the appellee, Sue M. Grider, dum sola, and for which amount, at least, she cannot avoid her liability to the appellants, by reason of her subsequent coverture.

E. F. Adams, for appellee.

To our mind the case presents a pure and simple attempt on the part of appellants to hold Mrs. Grider, a married woman, bound on a promissory note, and do not allege, nor does the proof show, that it was given to benefit her separate estate, or for her support or maintenance, or that Mrs. Grider was a sole trader and engaged in business. On the contrary, it is perfectly plain it was without consideration as to Mrs. Grider, and was given for a debt due by her husband, W. H. Grider, and for which they have judgment against him. And, as we understand the law, it is directly in the face of and against all the authorities on the liability of married women. Walker v. Jessup, 43 Ark. 163; Challer et al. v. Temple et al., 39 ib., 238; Conner, Admr., v. Abbott, 35 ib., 365; Collins v. Underwood, 33 ib., 265; Henry v. Blackburn, 32 ib., 445; Triber et ux. v. Stover & Co., 30 ib., 727; Stilwell et ux. v. Adams et al., 29 ib., 346; Buckner v. Davis, 29 ib., 444.

But, for the sake of argument, admit that the suit was on the account. The proof shows that only $ 80.90 worth of the goods alleged to have been bought from appellants were purchased before Mrs. Grider's marriage, and appellants admit that $ 150 was paid on the indebtedness on the 19th day of October, 1881. Appellants made no application of the payment to any particular item of the account, and admit that the appellee, Mrs. Grider--for she is the only one before the court, the cause not having been transferred as to, or contested by, W. H. Grider--made no application thereof. The court will apply the credit to the oldest items, or the most burthensome, on the account. Johnson et al. v. Anderson, 30 Ark. 745; Hughes v. Johnson, 38 ib., 285.

If this be done it is perfectly apparent that the whole of said account unpaid was made after Mrs. Grider's marriage, and is for articles which the husband was bound to, and did furnish, his family. And no court will believe the articles were furnished to Mrs. Grider's, because the appellants have made out the account against her.

OPINION

SMITH, J.

Grider and his wife were sued for a balance due on a promissory note made by them to the plaintiffs in the year 1881. The husband suffered a default to be taken against him, but Mrs. Grider pleaded her coverture. An amended complaint was then filed stating that she had a separate estate, out of which the debt...