Walker v. Arkansas Nat. Bank of Hot Springs

• Decision Date: 18 February 1919
• Docket Number: 5178.
• Citation: 256 F. 1
• Parties: WALKER v. ARKANSAS NAT. BANK OF HOT SPRINGS.
• Court: U.S. Court of Appeals — Eighth Circuit

256 F. 1

WALKER v. ARKANSAS NAT. BANK OF HOT SPRINGS.

No. 5178.

United States Court of Appeals, Eighth Circuit.

February 18, 1919

This is an action on a promissory note for $3,800, executed by the defendant at Hot Springs, Ark., on January 8, 1916, which sum she promised to pay 60 days after date, at the Arkansas National Bank, in Hot Springs, Ark. The note was indorsed by F. P. Walker. Having failed to pay the note, this action was instituted.

To reverse this judgment this writ of error is prosecuted.

The answer of the defendant pleaded: That, at the time she executed the note sued on, and for several years before that time, she was a resident of the state of Arkansas, and a married woman, the wife of Frank P. Walker. That, long prior to the execution of the note, her said husband was indebted to the plaintiff bank in the sum of $2,500, which indebtedness was originally incurred by him prior to the year 1915, and that, prior to that year, her husband and the plaintiff prevailed upon her to sign her husband's promissory note for the sum, as surety. That this practice of her signing as surety continued prior to and through the year 1915. That on or about November, 1915, she again signed a promissory note for $3,800, which included the sum of $2,500 and the sum of $1,300, borrowed on her own note, which last note was to fall due January 8, 1916; she being herself ignorant at all times of business affairs. That of the $3,800, included in the note which she signed, she had borrowed, prior to the year 1915, from the plaintiff, the sum of $1,300, which she had offered to pay, although not legally bound to do so. That the note sued on is, as to her, wholly without consideration, except possibly as to the said sum of $1,300. That, so far as the $2,500 is concerned, she only signed as surety for her husband-- all of which was well known to the plaintiff. That prior to the 19th day of March 1915, she being a married woman, she was not liable under the laws of the state of Arkansas for any debts not made for the benefit of her own separate estate and her sole and separate use and benefit, and no contract or promise of a married woman could bind her, except such as she made in and about her sole and separate estate. That no part of the $2,500 was for the benefit of her separate estate, and that she received no benefit whatever from it. That the $1,300, which she did receive was not for her personal estate, but for personal expenses, which should have been provided for by her husband and that under the laws of the state of Arkansas, in force at that time, she was not liable for that sum. She therefore prays judgment to go hence without day.

The plaintiff filed a motion for judgment on the pleadings, which was by the court sustained and judgment entered against the defendant for the face of the note, and interest.

Cyrus Crane, of Kansas City, Mo. (Lathrop, Morrow, Fox & Moore, of Kansas City, Mo., on the brief), for plaintiff in error.

Hale H. Cook, of Kansas City, Mo. (Roy K. Dietrich and Ellis, Cook & Dietrich, all of Kansas City, Mo., on the brief), for defendant in error.

Before SANBORN and STONE, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge (after stating the facts as above).

As the cause of action is based on a promissory note, executed and payable in the state of Arkansas, the laws of that state control. What the law of that state was prior to the enactment of Act of March 19, 1915 (Acts 1915, p. 684), and what it is since the enactment of that act, is stated in the late decision of the Supreme Court of that state in Holland v. Bond, 125 Ark. 526, 189 S.W. 165, as follows:

'Prior to the passage of this act a married woman would not be liable as surety on a promissory note for her husband because contracts could only be made by a married woman in reference to her separate property or business. (Citing authorities.) But the act of 1915, just referred to, has removed that restriction, and in the broadest terms enables a married woman to sue and be sued, to contract and be contracted with, and in law and equity to enjoy all rights and be subjected to all the laws of this state as though she were a feme sole. * * * This construction also results from the reasoning of the court in Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832 (187 S.W. 460, L.R.A. 1917B, 774, Ann. Cas. 1918C, 772), where we held that the statute meant to give the wife the right to maintain an action against her husband either upon contract or for tort.'

Applying this rule to the instant case, the note sued on having been executed by the defendant after the act of 1915 had gone into effect, she is prima facie liable.

But it is urged that, as this note is but a renewal of former notes, executed while, under the laws of the state of Arkansas, a married woman could not be held liable on a renewal note executed after promissory note, she is not liable on a renewal note executed after her disabilities had been removed, as the validity of the note must be determined by the law in force at the time the original contract was made.

An examination of the authorities relied on on behalf of the plaintiff in error fails to sustain this contention. What they hold is the well-established rule that, a contract absolutely void for illegality, either prohibited by statute, or malum in se, or being against public policy, will not be validated by a renewal note. But there never was a statute of the state prohibiting a married woman to become a surety, nor is such an act malum in se or against public policy, and therefore her contract is not absolutely void, but merely voidable, although courts frequently use the word 'void' in speaking of such a contract when meaning 'voidable.' Ramsey v. Crevlin, 254 F. 813, . . . C.C.A. . . ., decided by this court December 4, 1918, and authorities there cited.

It is the settled law of Arkansas that a married woman may mortgage her separate estate, as surety for her husband, without any consideration passing to her. The consideration to her husband will support her mortgage. Collins v Wassell, 34 Ark. 17; Scott v. Ward, 35 Ark. 480; Petty v. Grisard, 45 Ark. 117; Goldsmith v. Lewine, 70 Ark. 516, 69 S.W. 308; ...