Thompson v. Taylor

• Decision Date: 17 June 1901
• Citation: 49 A. 544,66 N.J.L. 253
• Parties: THOMPSON v. TAYLOR.
• Court: New Jersey Supreme Court

49 A. 544

66 N.J.L. 253

THOMPSON

v. TAYLOR.

Court of Errors and Appeals of New Jersey.

June 17, 1901.

(Syllabus by the Court.)

Error to circuit court, Bergen county.

Action by Andrew Thompson against Lillian B. Taylor. Judgment for defendant, and plaintiff brings error. Reversed.

This action was brought in the circuit court upon a note, of which the following is a copy: "$422.29. Englewood, N. J., Oct, 10, 1898. Three months after date I promise to pay to the order of W. Bernard Taylor four hundred twenty-two 29/100 dollars, at 44 Broad St., New York City; value received. Lillian B. Taylor."

Indorsed: "W. Bernard Taylor, 44 Broad St."

The note was signed by Lillian B. Taylor at the time and place of its date, she being then the wife of the payee. She signed it at her husband's request, and solely for his accommodation, and delivered it to him without any express limitation on the use he might make of it. The husband at once took the note to New York City, and there transferred it, with his indorsement, to the plaintiff, to take up two similar notes held by him, and then past due, aggregating, with interest, the amount of this note; which two notes the defendant had signed under the same circumstances, and which her husband had transferred to the plaintiff in the same manner for cash. The plaintiff knew that the payee and maker were husband and wife, but had no further notice, outside of the notes themselves, of the circumstances under which they had been signed.

The husband and wife have been during all the time above referred to, and still are, domiciled in New Jersey.

Since 1892 the statutes of New York have provided that "a married woman may contract with her husband or any other person, to the same extent, with the like effect, and in the same form as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary." Laws 1892, c. 594, § 1.

Deeming the case one of doubt and difficulty, the Bergen county circuit court certified the foregoing facts to the supreme court for its advisory opinion on the question whether, on those facts, the plaintiff is entitled to judgment against Lillian B. Taylor for the sum mentioned in the note and interest.

The supreme court, after hearing argument, advised the circuit court that the plaintiff was not entitled to judgment against Lillian B. Taylor upon the note in suit. 46 Atl. 567. Judgment in accordance with this advisory opinion was thereupon entered by the circuit court against the plaintiff, who, by writ of error, removed that judgment into this court.

C. L. Corbin and R. P. Wortendyke, for plaintiff in error.

G. W. Betts, Jr., for defendant in error.

GARRISON, J. (after stating the facts). The note in suit was not a New Jersey contract. The parties to it in this state were husband and wife. By force of section 14 of our married women's act, there is in this state no law to enable husband or wife to contract with each other, excepting as at common law. 2 Gen. St. p. 2015; Woodruff v. Apgar, 42 N. J. Law, 198; Turner v. Davenport (N. J. Ch.) 47 Atl. 766.

Hence the written promise of the wife to pay a sum of money to the order of her husband, signed by her and delivered to him in the state of New Jersey, did not constitute a contract When, therefore, the note left this state no legal contract was in existence. Bank v. Brewster, 49 N. J. Law, 231, 12 Atl. 769. In New York the abovementioned feature of the common-law rule has been expressly superseded by an enabling act that empowers a married woman to contract with her husband to the same extent and in the same form as if unmarried.

The husband, therefore, having in his possession, in the state of New York, his wife's note, intrusted to him under the circumstances certified in this case, had the means of making for her a contract of suretyship that would be valid by the law of the place where it came Into legal existence and where it was to be performed. By his indorsement and delivery of the signed note, the wife was as effectually bound to the payee as if she had personally executed the note in the state of New York.

Where a note is signed in this state, but is passed away, and comes first into legal existence in the state of New York, in contemplation of law it was made in the latter jurisdiction. Campbell v. Nichols, 33 N. J. Law, 82. The note, therefore, is a contract made in the state of New York, upon the facts certified, without reference to the legal rule that a note made payable at a particular place is to be treated in all respects as if made at that place, for which abundant authority is cited in the brief of the plaintiff's counsel.

To the next proposition of the plaintiff, viz. that such a contract, made in New York, and valued by its laws, will be enforced by the courts of New Jersey, two objections are raised: First. That the incapacities of a wife under the common law, if not removed by the statute law of her domicile, follow her wherever she goes; so that, if at home she be unable to bind herself as surety, she may nowhere bind herself by such a contract, Secondly. That the retention in our law of so much of the common law as prevented married women from becoming sureties is a declaration by the legislature of a public policy to which the courts should give effect by refusing to enforce obligations of this nature incurred by its citizens in other states where this disability no longer exists.

Both of these points are taken in the brief of counsel for the defendant, and each of them receives some support from the opinion delivered in the supreme court, although the actual decision of the case is rested upon the second ground, viz. that of public policy.

It will be necessary, therefore, to consider each of these propositions. The first claim is that the capacity of a married woman to make a contract of suretyship is governed by the law of her domicile, and not by the law of the place where the contract is made and where it is to be performed; in other words, that capacity to contract is governed by the law of domicile, and not by the lex loci contractus. The discussion of this question by the civilians and in early judicial writings occupied much space, and received the closest attention from Mr. Justice Story as one in which the doctrines of the civil law could not be made to harmonize with the commercial rule upon the subject. It is rarely worth while to search back of Story upon such a question, especially if he have decided against the civil-law rule. In his Commentaries upon the Conflict of Laws, after a comprehensive review of the authorities, Judge Story reached the conclusion that,...