The United States Banking Company v. Veale

• Decision Date: 11 March 1911
• Docket Number: 16,954
• Citation: 114 P. 229,84 Kan. 385
• Parties: THE UNITED STATES BANKING COMPANY, Appellee, v. ANNA WILSON VEALE, Appellant
• Court: Kansas Supreme Court

114 P. 229

84 Kan. 385

THE UNITED STATES BANKING COMPANY, Appellee, v. ANNA WILSON VEALE, Appellant

No. 16,954

Supreme Court of Kansas

March 11, 1911

Decided January, 1911.

Appeal from Shawnee district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FOREIGN LAWS--Necessity to Plead and Prove. Foreign laws differing from our own and relied on to support a cause of action or a defense must be pleaded and proved.

2. SURETYSHIP AND GUARANTY--Husband and Wife--Laws of Mexico. Under the proof it is held that in Mexico a wife may become a surety for her husband and guarantee the payment of his debts.

3. CONTRACTS--Duress. An obligation signed by a wife in renewal of one given by her husband, by reason of a statement of one who was a surety on her husband's obligation, to the effect that if she did not then sign the obligation it would be a great detriment to her husband and result in loss and damage to him, is held, under the attending circumstances, not to have been constrained by duress.

4. CONTRACTS--Same. Ordinarily it is not duress to bring or threaten to bring an action to enforce a valid obligation, nor to do that which a party has a legal right to do.

Joseph G. Waters, John C. Waters, and Richard E. Chism, for the appellant; R. W. Blair, H. A. Scandrett, and B. W. Scandrett, of counsel.

T. F. Garver, and R. D. Garver, for the appellee.

OPINION

JOHNSTON, C. J.:

The United States Banking Company, a corporation organized under the laws of the Republic of Mexico and doing business in the City of Mexico, brought this action against Anna Wilson Veale to recover on a promissory note for 9243.57 pesos, and another for 282.29 pesos, and also for interest and attorney's fees on each, stipulated for in case the notes were not paid at maturity. It was alleged that the pesos mentioned were of the value of fifty cents in legal tender of the United States. The defendant answered that the notes had been paid, that they were barred by the lapse of time, that there was no consideration for her signature, that she had no authority from her husband to sign her own name to the notes nor that of her husband, and that he had not since the signing of the notes consented to her action. She also alleged that John J. Judd, whose name is also signed to the notes, informed her that her husband's notes had fallen due at the bank "and that she must sign his name to the renewal note, and also sign the same herself, and if she failed to do so that it would be to the great injury, loss and damage of her husband; that, believing such statement to be true, she signed her husband's name to said notes, and also her own." The reply was a denial of the averments of the answer, and it contained a verified denial of the averment that Judd acted as the agent of the bank in procuring the signing of the notes.

When the cause came on for trial the parties submitted the following stipulation:

"A trial by jury of the general issues, and a general verdict from the jury, is waived, and all of the issues in this case submitted to the court; except the court, if he thinks the evidence warrants, shall submit to the jury the question of the execution of the note by the defendant under duress, and the finding of the jury upon that question shall be received and considered the same as the finding of the jury upon any question of fact in a law case."

A jury was called by the court, as to the charge of duress, but after the testimony had been received the trial judge determined that he was not warranted in submitting the question to the jury, and all the questions in the case were taken and decided by the court.

The evidence disclosed that appellant and her husband, Walter J. Veale, were citizens of Kansas, but had been residing in the Republic of Mexico since the year 1896, and that while there he had become indebted to the appellee and had given his note for the debt, and that John J. Judd had signed it as surety. When the note became due Veale and Judd were both absent from the City of Mexico. Veale telegraphed Judd that he was unable to pay the note and requested him to intercede for and procure a renewal. Judd returned to the city before Veale did, which was several days after the note was due. He called on Mrs. Veale, and, according to her testimony, told her of the situation--that the renewal notes had to be signed that day, and when she inquired if he could not wait for the return of her husband he told her that it could not be postponed till her husband came home; that it would be a great detriment to her husband if it was not fixed that day, and so she went to the bank with Judd and signed her husband's name to the notes, and also signed her own name as surety. Mr. Veale returned to the city shortly after the execution of the notes and learned of the action taken, but it does not appear that he made any objection to the bank or to Judd in regard to the execution of the renewal notes, but, on the other hand, he repeatedly promised to pay them. About three years later he made a payment of $ 450 to the bank, for which a credit was given on the notes.

Although appellant did not plead the laws of Mexico relating to the capacity of a married woman to sign notes for her husband or herself, or to enter into contracts, testimony on the subject was received, and based on that the court found as follows:

"The law of Mexico at the time the notes in suit were executed was that the husband is the legal representative of his wife, and that, except in the cases provided by law, the wife can not obligate herself without the express authorization of her husband. The law of Mexico at the time the notes in suit were executed further provided, as an exception to the law stated above, that a wife could obligate herself as a guarantor or surety for her husband.

"At the time the notes in suit were executed, and continuously to the date of trial, the law of Mexico was that if the husband expressly or tacitly ratified the acts of his wife no one could bring a suit for a nullity, a suit for a nullity being the remedy afforded by the Mexican law for the redress from a voidable contract.

"At the time the notes in suit were given, and ever since, the failure of the husband, with knowledge of the unauthorized action of his wife in personally assuming an obligation, to object thereto was a tacit ratification within the meaning of the Mexican law, and a voluntary payment on such obligation by him with such knowledge was an express ratification, and either such tacit or express ratification would validate such unauthorized act.

"Walter J. Veale returned to his home in the City of Mexico in two or three weeks after the execution of the notes by his wife, as narrated in finding No. 3, and was immediately notified of his wife's said action. No objection was ever made by said Walter J. Veale, or by anyone for him, to said bank, or to said Judd, or to any other person, on account of the said action of his wife in executing said notes, until after this suit was commenced, and said Walter J. Veale repeatedly promised and agreed to pay the same, giving his financial inability as his only reason for not doing so, and on January 21, 1907, did pay to said bank on said notes the sum of $ 450, Mexican, which sum was by the bank credited on said indebtedness and indorsed on said principal note."

On the findings of fact the court concluded that the appellant had legal capacity, under the laws of Mexico, to execute the notes, and that appellee was entitled to judgment for the amount demanded.

As to the capacity to execute the notes there is little ground for contention. It is true that the laws of Mexico, as proven merge the individuality of the wife into that of her husband and give a married woman but few rights and privileges. The husband is the representative of the wife, and he may ratify her acts, either expressly or tacitly. As...