Union Stock Yards National Bank of South Omaha v. Lamb

• Decision Date: 18 December 1912
• Docket Number: 16,837
• Parties: UNION STOCK YARDS NATIONAL BANK OF SOUTH OMAHA, APPELLEE, v. MARY LAMB, APPELLANT
• Court: Nebraska Supreme Court

139 N.W. 216

92 Neb. 608

UNION STOCK YARDS NATIONAL BANK OF SOUTH OMAHA, APPELLEE, v. MARY LAMB, APPELLANT

No. 16,837

Supreme Court of Nebraska

December 18, 1912

APPEAL from the district court for Greeley county: JAMES R. HANNA JUDGE. Affirmed.

AFFIRMED.

J. R Swain, for appellant.

Parish & Martin and John E. Kavanaugh, contra.

OPINION

REESE, C. J.

This is an action by plaintiff against Mary Lamb and M. Lamb to recover the balance due upon a promissory note executed by both defendants. It is alleged in the petition that the note sued upon is a renewal of a note previously given for the same indebtedness; the former note having been signed by both defendants. The fifth paragraph of the petition is as follows: "That on the 13th day of September, 1907, the defendant Mary Lamb executed and delivered to the plaintiff a chattel mortgage for the sum of $ 4,119.92, and that said chattel mortgage was made at the same time as the note herein set out, and was made a part of the original contract between the plaintiff and the defendant, and the said chattel mortgage contained the following condition: 'It is expressly understood that this mortgage covers and secures all extensions or renewals of within described note or notes.' And said mortgage also contained the following condition: 'If for any cause said property shall fail to satisfy said note, debt, interest, costs and charges, I covenant and agree to pay the deficiency.'" It is alleged in the sixth paragraph of the petition that the consideration named in the notes and mortgage was extended to the defendant Mary Lamb, and the entire contract whereby she became indebted to the plaintiff was made with the defendant Mary Lamb, whereby she pledged her separate property for the faithful performance of the obligation named in said notes and mortgage.

Defendant M. Lamb filed no answer. Mary Lamb answered (1) by a general denial of the unadmitted averments of the petition; (2) admitted the signing of the note upon which the action was based, but alleged that "she is a married woman, the wife of M. Lamb, the defendant in this case, and was such at all times mentioned in said petition, and a resident of the state of Nebraska; that she never signed said note mentioned in paragraph two of plaintiff's petition or any agreement connected therewith with reference to her separate property, estate or business, nor with a view of binding her separate property, estate or business, but signed said note solely as surety for said M. Lamb, and for no other purpose;" (3) avers that she never received any consideration for said note, other than the fact that she signed it as surety, and that she never had any business dealings with plaintiff, and was not indebted to it in any sum, and signed said note at its request as surety only. The reply was, in substance, a general denial. A jury trial was had.

It is suggested in the transcript that, at the commencement of the introduction of evidence, the defendant Mary Lamb objected to the introduction of any evidence, for the reason that the petition did not contain facts sufficient to constitute a cause of action in favor of plaintiff and against the defendant Mary Lamb. The objection appears to have been overruled and exception taken, and the ruling is presented in this court for error. The contention seems to be that it is shown by the paragraphs in the petition, herein above referred to, that the action is against Mary Lamb as a married woman, and, that being the case, the petition is deficient for want of an allegation that she signed the note upon the faith of her separate estate, which she then had and continued to have at the time of filing the petition. A number of cases are cited in the brief sustaining this view, and the law is probably as contended for, if in a proper case; but we fail to see that it can be applied to this case. There is no averment in the petition that Mary Lamb is, or was, a married woman. We are unable to see the necessity for the averments in the petition, above quoted and set out, since they fall short of making the allegation of coverture. It may have been the object of the pleader to plead his evidence, which, although violative of the rules of pleading, would not furnish a basis for a demurrer. It did not detract from the cause of action stated. It may have been the purpose to anticipate a possible defense of suretyship, which would be improper, but would not render the pleadings demurrable as not stating a cause of action, if one was otherwise stated. We therefore conclude that the court did not err in overruling the demurrer ore tenus. Where the petition does not allege coverture, the fact that the defendant is a married woman is matter to be set up in defense, and in such case it is for a defendant to sustain the defense by proper evidence. If she establishes coverture, the burden is on the plaintiff to prove that the contract was made with reference to and upon the credit of her property. Citizens' State Bank v. Smout, 62 Neb. 223, 86 N.W. 1068.

It is shown by the transcript that upon trial to the jury a general verdict was returned finding in favor of plaintiff...