Warder, Bushnell & Glessner Co. v. Stewart ( 1896 )

Lore, C. J.,

(charging the jury.)

This is an action brought by the Warder, Bushnell & Glessner Company, plaintiffs, against William T. Stewart and Janey Stewart his wife, the defendants to recover the amount of a lost note or obligation under seal, with a warrant of attorney thereto, claimed by the plaintiff, to have been made, executed and delivered by the defendants to the plaintiff, dated September 1, 1892, for the sum of $93.28, payable September 1, 1893. The plaintiff also claims interest from September 1,1893, making the aggregate claim at this date, $116.33.

The note itself has been mislaid or lost, and has been proved by secondary evidence, that is, from the recollection of the attesting witness and others as to the tenor thereof.

The obligation is proved to have been given by a husband and wife, for the debt of the husband, and its collection is resisted by the defendants on several grounds.

It is objected, that as the obligation was not given for the benefit of the wife, or the protection of her estate, but for the debt of the husband, that the obligation is void as to her; that as the defendants are sued jointly, no recovery can be had against either.

This involves the construction of Section 9 of the married woman’s act of April 9, 1873, as amended. In Kohn vs. Collison, decided in Kent County, April Term, 1893; this Court ruled, that a married woman could not become an accommodation endorser on her husband’s negotiable paper, to secure his antecedent debts. The Court then said, “ In no case has the wife been permitted to contract generally in relation to matters other than her own property, unless expressly authorized so to act as a feme sole.” We now adhere to and emphasize that ruling, which has since been approved in Wright vs. Parvis and Williams Company, decided in New Castle County, November Term, 1894.

Section 9 of the act of 1873, as amended, by act of February 27th, 1879, reads as follows:

“And in any case a married woman above the age of 21 years, may give bond with or without warrant of attorney, just as if she were a feme sole.” What might have been the construction of the language of the act of March 17, 1875, does not now concern us. The amendment of February 27, 1879, above quoted, uses technical language of such scope and precision, that after the most careful consideration, we all agree that under its terms a married woman may execute a bond with or without warrant of attorney, to secure a debt not her own. The language of the section being expressly that she may execute such bond, “just as if she were a feme sole.” As to this particular species of obligation, the Legislature seems to have removed expressly all disability. The case therefore comes within the rule in Kohn vs. Collison.

The words “ as if feme sole,” when unrestricted by the context, have been quite uniformly considered by the Courts in construing statutes relating to married women, as giving the largest possible power, and practically emancipating the wife from contractual limitations, imposed upon her as a married woman, with respect to the subject matters of the act.

In Roop, et ux Appeal, 132 Pa. 496 (19 Atl. Rep. 278), cited by the the counsel for the defendants, Chief Justice Paxson of the Supreme Court of the State of Pennsylvania, specifically names these words as the proper ones for the Legislature to use if unlimited power were intended to be given. He there says, “ If however it was intended to confer this broad power, and place a married woman on the same plane as a feme sole, it could have been done in a few lines, declaring that hereafter a feme covert, should have the same power to contract debts as a feme sole.” The same doctrine is sustained in Andrews vs. Matthews, 124 Mass. 108 ; and also 2 Bishop on Married Women, § 233.

The defendants further object, that even if a married woman has authority to execute a bond for purposes such as this case discloses, that the obligation proved in this case is not such a bond as comes within the terms of the statute.

Hurlstone in his work on bonds uses this language: “ A bond is an instrument under seal, whereby one becomes bound unto another, for the payment of a sum of money, or for the performance of any other act or thing.” No certain form is necessary. Any form of words in writing, under seal acknowledging a debt, and naming an obligee is as obligatory as the most formal act. 2 Am. and English Ency. Law 448. If therefore you believe the lost paper was in writing, signed by the defendants and under seal obliging the defendants to pay to the plaintiff the sum of money named, it was a bond within the meaning of the statute.

It is further objected that there was no seal opposite the signature of the wife, but only opposite the signature of the husband. On this point, in Davis vs. Burton, 9 Scanmon 41, the Supreme Court of Illinois used this language: “We feel warranted by common sense, by justice and sound reason, as well as by the principles of law, to presume that all the signers of an instrument indicating upon its face an intention to sign it, adopted any seal or scroll that may be annexed to the name of one.” The Supreme Court of New Hampshire in Pequawkett Bridge vs. Matthes, 7 N. H. 230, say: “The authorities are conclusive, that there may be a less number of seals than of signers to an instrument. It is said that it is not necessary to have on a deed as many pieces of wax or wafers as there are obligors, and that one wafer may serve for all.” This is old law and is found in Sheppard’s Touchtone, p. 51, and also in Comyn’s Digest and other works of like character. Therefore the presumption is, that the wife adopted the seal opposite the name of her husband, and you are warranted in so finding, unless there is some proof to the contrary.

It is also claimed that there should be no recovery, because it is alleged the note has been altered. If from the evidence you are ^satisfied, that there have been any material alterations made after the note was endorsed and delivered by the defendants without their consent, this action cannot be sustained. Such alterations, however, must be material, changing the character of the instrument or the relation of the parties thereto. Mere change in the color of the ink; the addition of a number by the plaintiff for convenience, or other-immaterial alterations would not vititate the note if it remained substantially the same. Even if the changes were material, yet if they were made before execution and delivery, in the presence of and with the consent of the defendants, the note is valid.

Therefore, if you believe from the evidence, that the lost note-was in writing, under seal, signed by the defendants, executed and delivered to the plaintiff for the payment of $93.28, dated and maturing as alleged, and not materially altered without the consent of the defendants, your verdict should be for plaintiff. Otherwise,, for the defendants.

Verdict for the plaintiff for $110.72..