T. G. Northwall Co. v. Osgood

• Citation: 80 Neb. 764,115 N.W. 308
• Decision Date: 20 February 1908
• Docket Number: No. 15,050.,15,050.
• Parties: T. G. NORTHWALL CO. v. OSGOOD.
• Court: Nebraska Supreme Court

80 Neb. 764

115 N.W. 308

T. G. NORTHWALL CO.

v.OSGOOD.

No. 15,050.

Supreme Court of Nebraska.

Feb. 20, 1908.

Syllabus by the Court.

The syllabus in Farmers' Bank v. Boyd, 67 Neb. 497, 93 N. W. 676, reaffirmed, and held to be the settled doctrine of this court.

The construction placed by this court upon the married woman's act, in Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N. W. 82, reaffirmed, and held to be the settled doctrine of this court.

A purchaser for value, before maturity, of a promissory note, signed by a married woman, cannot invoke the rule of innocent purchaser, as against the defense of coverture, by showing simply that he had no notice or knowledge of such coverture at the time he purchased such note.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Johnson County; Raper, Judge.

Action by the T. G. Northwall Company against Mary K. Osgood. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

D. F. Osgood, for appellant.

E. Ross Hitchcock, for appellee.

FAWCETT, C.

Plaintiff, T. G. Northwall Co., sued upon a combination chattel mortgage note, executed May 22, 1902, and payable on or before April 1, 1903, to W. P. Atkins, or bearer, at his office in Sterling, Neb. The petition alleges that on the 19th day of January, 1903, Atkins indorsed said note, and for a valuable consideration, in the usual course of business, delivered the same to plaintiff, and that plaintiff became the owner of said note before maturity, without notice, and is an innocent owner of said note. To this petition, defendant, Mary K. Osgood, filed her answer, in which she alleges, among other things: “(2) This defendant alleges that she is a married woman, living with her husband, Daniel F. Osgood, and has been for the nineteen years last past. (3) Defendant alleges that she did not sign the note sued on with the intention of binding her separate property or estate, nor was the consideration for said note used for the benefit of her separate property or estate. (4) Defendant alleges that the note sued on was signed at the request of her husband, above named, for the payment of one gasoline engine purchased by him of one W. P. Atkins.” Then follow a number of other allegations to which it is not necessary to refer. No reply whatever was filed to this answer. Such being the state of the record, then, under the well-settled practice in this state, defendant was entitled to a judgment on the pleadings. No motion for such a judgment was interposed, however, but the parties proceeded to trial to the court, a jury having previously been waived. After hearing the evidence and arguments, the court found in favor of the plaintiff, and entered judgment against the defendant for the amount of the note and interest, aggregating the sum of $105. A motion for new trial was duly filed and overruled, and the case is here for review.

Even if we give plaintiff the benefit of a reply denying generally the allegations of dedefendant's answer, on the theory that defendant went to trial without raising the question of the absence of such reply, we must still reverse the judgment of the trial court. It is no longer an open question that: “It is the settled doctrine of this court that the signing of a promissory note by a married woman does not raise the presumption that she intended thereby to render her separate estate liable for its payment, nor that it was given with reference to her separate property, trade, or business, or upon the faith and credit thereof; and to an action upon such note coverture is a complete defense, unless the plaintiff shall establish by a preponderance of the evidence that the note was made with reference to, or upon the faith and credit of, the wife's separate estate or business, or with an intention on her part to charge her separate estate with its payment.” State National Bank v. Smith, 55 Neb. 54, 75 N. W. 51;Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N. W. 82;Farmers' Bank v. Boyd, 67 Neb. 497, 93 N. W. 676.

The evidence contained in the bill of exceptions shows that the note in controversy was given by defendant in payment of a gasoline engine that had been sold by Atkins to defendant's husband. Defendant testified that she was a married woman, and living with her husband; that when she signed the note, she did not intend to bind her separate property any further than as it was written in the note, which could mean nothing more than that the gasoline engine named in the mortgage clause of the note might be held as a pledge for the payment of the same. Plaintiff places great reliance upon two questions propounded to defendant by the court, and her answers thereto, shown on page 27, bill of exceptions, viz.: “Q. By the Court. Who bought the gasoline engine? A. Mr. Osgood bought it. Q. Whose was it after it was bought; was it yours or his? A. I suppose it was mine, my name was attached to the note.” There is nothing in the record to show where the engine was used, or...