Vliet v. Eastburn

• Decision Date: 26 June 1899
• Citation: 43 A. 741,63 N.J.L. 450
• Parties: VLIET v. EASTBURN et al.
• Court: New Jersey Supreme Court

43 A. 741

63 N.J.L. 450

VLIET

v. EASTBURN et al.

Supreme Court of New Jersey.

June 26, 1899.

(Syllabus by the Court.)

Case certified from circuit court, Middlesex county, for advisory opinion.

Action by Daniel Vliet against Isabella and Robert Eastburn. Rule to show cause made absolute in part.

The case certified was as follows: "A verdict for the plaintiff in the above-stated cause involves a finding of the following matters of fact, viz.: On November 14, 1896, the defendants, husband and wife, made their promissory note (the wife signing first) to the order of Charles T. Cowenhoven for $2,480, payable in four months, and delivered the same to him, on the understanding that he was to use the same as collateral for a loan. Cowenhoven gave in exchange his promissory note to the order of Isabella Eastburn for a like amount and term, with the understanding that the same was not to be used. He also paid to the defendants, or one of them, as a bonus, the sum of $80. The notes were partly renewed from time to time on the same conditions, and with the same bonus at each renewal. The notes now outstanding were given December 6, 1897, for four months, for $2,080 each. The plaintiff became a bona fide holder for full value, before maturity, of one of the series of defendants' notes, and is such holder of the note in suit. At the time of the giving of the original notes, Cowenhoven was reputed solvent, and his note was of value. Isabella Eastburn knowingly received a part of the bonus on one of the renewals. On July 28, 1898, Isabella Eastburn brought suit against Cowenhoven upon his last promissory note, among other claims. At that time she did not know that plaintiff held the note in suit. Cowenhoven filed a plea of the general issue, and the action is still pending. The plaintiff subsequently brought the present suit. The pleadings in this cause are sufficient to admit of a defense by Isabella Eastburn under the amendment of June 13, 1895 (2 Gen. St. p. 2017, pl. 26), to section 5 of 'An act to amend the law relating to the property of married women' (Revision), approved March 27, 1874. A rule to show cause why the said verdict should not be set aside, and a new trial granted, is now pending. The advisory opinion of the supreme court is asked whether the rule to show cause should be made absolute or discharged: (1) If all the matters of fact above recited are consistent with the clear weight of the evidence; (2) if the clear weight of the evidence is that Isabella Eastburn did not knowingly receive any bonus, but, on occasion of one of the renewals, did ignorantly obtain for the advantage of her separate estate a part of the bonus paid. The foregoing case, hereby made and stated as one of doubt and difficulty, is certified to be argued at the bar of the supreme court."

Argued February term, 1899, before MAGIE, C. J., and GARRISON, LIPPINCOTT. and COLLINS, JJ.

John S. Voorhees, for plaintiff.

H. M. T. Beekman, for defendants.

COLLINS, J. As, at common law, a married woman could make no contract legally enforceable, her promissory note was altogether void Daniel, Neg. Inst. § 240; 4 Am. & Eng. Enc. Law, 348. The present enabling act reads as follows: "That any married woman shall, after the passing of this act, have the right to bind herself by contract with any person in the same manner and to the same extent as though she were unmarried, which contract shall be legal and obligatory, and may be enforced at law or in equity, by or against such married woman, in her own name, apart from her husband; provided, that nothing herein shall enable such married woman to become an accommodation indorser, guarantor or surety, nor shall she be liable on any promise to pay the debt, or answer for the default or liability of any other person: provided further, however, that if on the faith of any indorsement, contract of guaranty or suretyship, promise to pay the debt or to answer for the default or liability of any other person, any married woman obtains directly or indirectly, any money, property or other thing of value, for her own use, or for the use, benefit or advantage of her separate estate, she shall be liable thereon as though she were unmarried, anything herein contained to the contrary notwithstanding." 2 Gen. St. p. 2017, pl. 26. Under the proviso annexed to this grant of power, contracts of suretyship still remain void. It is not necessary to their avoidance that they should be such in form, if they are such in fact. In Anthony v. Fritts, 45 N. J. Law, 1, it was held that, if a party contracts in form as a principal, he may nevertheless show that he is really a surety, and may claim the privileges of a surety, though only in a forum administering equitable remedies....