Tolbert v. Standard Accident Ins. Co.

• Decision Date: 05 October 1949
• Docket Number: No. A-2195.,A-2195.
• Citation: 223 S.W.2d 617
• Parties: TOLBERT et al. v. STANDARD ACCIDENT INS. CO.
• Court: Texas Supreme Court

223 S.W.2d 617

TOLBERT et al. v. STANDARD ACCIDENT INS. CO.

No. A-2195.

Supreme Court of Texas.

October 5, 1949.

Rehearing Denied November 2, 1949.

James S. Grisham, Dallas, J. A. Lantz, Dallas, for petitioners.

Cole, Patterson, Cole & McDaniel, Houston, Jesse W. McDaniel, Houston, for respondent.

BREWSTER, Justice.

This is a suit on an indemnity contract filed by Standard Accident Insurance Company, respondent, against W. F. Warfield & Co., a corporation, one Abney as administrator of the estate of W. F. Warfield, deceased, and Mrs. Winnie Tolbert and her husband, J. R. Tolbert. Only Mrs. Tolbert appealed from a trial court judgment for respondent, which was affirmed by the Court of Civil Appeals. 218 S.W.2d 488. So she is the petitioner here.

W. F. Warfield & Co. was engaged in construction work and respondent was going surety on performance bonds to guarantee the execution of its contracts. W. F. Warfield was president of Warfield & Co., and petitioner was his wife.

On April 28, 1937, Warfield and petitioner executed in favor of respondent a "general contract of indemnity", which recited that respondent might thereafter be requested to execute "certain obligations of suretyship" for Warfield & Co. and undertook to define the liability of the signers to indemnify respondent against losses it might suffer by reason of any such suretyship. Among other things, the signers, described as "Indemnitor", agreed to perform all the conditions of any performance bond upon which respondent should become surety and "at all times indemnify and save the Surety harmless from and against every claim, demand, liability, cost, charge, counsel fee (including fees of special counsel whenever by the Surety deemed necessary), expense, suit, order, judgment and adjudication whatsoever, and will place the Surety in funds to meet the same before it shall be required to make payment." Although the contract recited that it was signed by Warfield & Co., that company did not join in its execution.

On August 3, 1939, W. F. Warfield was divorced by petitioner, who later married J. R. Tolbert. Warfield died in 1946.

On September 8, 1939, Warfield & Co. contracted with Ball Construction Co. to do certain construction work in connection with a housing project in Houston; and, as the contract required, Warfield & Co., as principal, and respondent, as surety, executed a bond in the sum of $57,000 conditioned on faithful performance by the former of its contract. Warfield & Co. defaulted in part and respondent was required to put up $19,485.07 to complete the work. This suit is to recover that amount with interest and attorneys' fees.

Among other defenses, Mrs. Tolbert pleaded that since she was a married woman at the time she signed the indemnity contract its obligation was one which she was not authorized by law to undertake. Our conclusion on that point disposes of the case.

Decision turns on the proper construction of the second sentence of Art. 4623, R.S.1925, which article provides: "Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property, shall be subject to the payment of debts contracted by the wife, except those contracted for necessaries furnished her or her children. The wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract." (Italics ours.) Thus it is manifest that petitioner's defense must fall if her contract as indemnitor can properly be regarded as one of suretyship.

With the adoption of the common law as the rule of decision in this state, in 1840, our married women were rendered unable to bind themselves by contract. Kavanaugh v. Brown, 1 Tex. 481. And, although by statute we retained the Spanish law rule that the wife can own property, our adoption of the common law meant that she can contract with respect to it or otherwise only for a purpose pointed out by law and only in such manner as our statutes may permit. Graham et al. v. Struwe et al., 76 Tex. 533, 13 S.W. 381; Speer's Law of Marital Rights, 3rd. Ed., Sec. 167, p. 226.

By section 4 of "An Act Defining the Marital Rights of Parties", passed in 1848, the enforceability of debts contracted by the wife for necessaries furnished her or her children or for the benefit of her separate estate was recognized, provided she was sued jointly with her husband. Under Sec. 5, of the act, execution could be levied upon either the community property of the parties or the separate property of the wife, at the discretion of the creditor. Gammel's Laws of Texas, Vol. 3, p. 77. The limitations thus fixed remained the law in Texas for 65 years. See Arts 4621, 4622 and 4624, R.S.1911. Reciting in the emergency clause, "The fact that the present law denies to married women the right to manage their separate property and to make contracts is unjust to a large number of citizens of this State," the legislature, in 1913, passed an act designed substantially to enlarge the wife's contractual powers. Acts 33rd Leg., R.S., chap. 32, p. 61. Art. 4623, supra, is a part of that act and it was first construed by this court in Red River National Bank v. Ferguson, 109 Tex. 287, 206 S.W. 923, 925.

In that case it was sought to hold the wife on a note which she had signed as surety for her husband. In holding that she was not liable, this court reviewed the history of the Act of 1913 both as it was attempted to be passed and as it was finally enacted. As originally passed, Art. 4623 (then 4624) read: "The wife may make any contract which she would be authorized to make but for her marriage, except those herein or elsewhere forbidden, and her coverture shall never be a defense in any suit or action based on such contract, but suits may be brought thereon in the manner prescribed by Articles 1840 and 1841 (that is, by joint suit). Provided, however, that neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payment of debts contracted by the wife, except those contracted for necessaries furnished her or her children: Provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such...