Howard v. Simpkins , 70 Ga. 322 ( 1883 )

Jackson, Chief Justice.

The plaintiff brought suit on the two following notes:

“ $150.00 Augusta, Ga., August 6th, 1881.

“On the first of November, we promise to pay to 0. Toler, or order, one hundred and fifty dollars, at either bank in the'city of Augusta, Ga., for one end-spring- top buggy and harness this day delivered to me, upon the distinct understanding that the title was not to pass to me until paid for in full, and he is authorized to take possession of same at any time until fully paid.

H. M. Simpkins,

• M. L. Simpkins.”

Endorsed, “ C. Toler.”

'“$150.00 Augusta, Ga., August 25, 1881.

“Sixty clays after date, I promise to pay C. Toler, or order, one hundred and fifty dollars, at either bank in the city of Augusta, Ga., for one end-spring top buggy, harness, whip and mat, this day delivered to me, upon the distinct understanding that the title was not to pass to me until paid for in full, and he is authorized to take possession of same at any time until fully paid for. t

H. M. Simpkins,

M. L. Simpkins.”

Endorsed, “C. Toler.”

Plaintiff was endorsee for value before the maturity of the notes, holding them as collateral for a debt due him by the payee. The defence is that the notes are not negotiable so as to' shut out the equities between the original parties in favor of a bolder for value before due; that both notes were given for the same consideration, the last in place of the first, on the representation of the payee that he had lost the first; that the consideration had failed, in that the payee had taken back the buggy, under the terms of the contract on the face of the notes ; that one of the defendants is a’minor and the other surety only, and a married woman, and neither, therefore, liable to pay the debt.

1. These defences were setup by pleas at the trial term,, the general issue having been filed at the first term, and plaintiff objected to them for that reason as being too late. They were in time, as amendments to the plea of the general issue.

2. The notes are negotiable. It was so held when the case was here before, ^* and our statute is very plain on the subject. The Code, section 2776, declares that any “ contract in writing for the payment of money or any article-of property, * * is negotiable by indorsement or written assignment, in the same manner as bills of exchange and promissory notes.” These notes were made payable to-the order of Toler, and when indorsed by him to Howard,, the plaintiff, the title passed to him, and they stand as any other promissory notes would in his hands as holder for value before due. The only defences which could be setup to them, then, are prescribed in our Code. Section 2785 declares that “the bona fide holder for value ox a bill,, draft, or promissory note, or other negotiable instrument,, who receives the same before it is due, and without notice of any defect or defence, shall be protected from any defences set up by the maker, acceptor or indorser, except. the following: 1. Non est factum \ 2. Gambling, or immoral and illegal, consideration; 3. Fraud in its procurement.”

Is there notice here to affect this holder ? None is pretended, except what appears on the face of the instruments. That only affects a resfervation of title to the buggy until the note is paid. It reserves a right to the payee; none-to the makers. They bind themselves to pay the money at maturity, in any event. He reserves the title to the buggy as a security until all that becomes due is paid. Such a reservation puts no purchaser of the negotiable instrument on notice of any sort of defence to it, for none is hinted at in the paper. 2 Kelly, 92; 3 Ib., 47; 22 Ga., 246; 25 Ib., 225; 61 Ib., 208.

3. But is not the plea of infancy good? The bona fide holder is not protected against that plea. It is incapacity to contract. 1 Parsons on Bills and Notes, p. 276; also p. 67 n. F., and cases cited. Code, 2729. This rule of common law and of the Code, has not been varied by statute, or by any change of the law as to infants, by any decision of this court.

The consideration of the note is a buggy; not an article of necessity to an infant. Therefore, he is not bound to-pay even the value of the note, under section 2731 of the Code, even if he could be made to pay it at all to any one but him with whom he contracted for the necessaries. 10 Johnson, 33; 10 Metcalf, 387.

Nor is he liable under section 2733 of the Code, which enacts : “ If an infant, by permission of his parent or guardian, or by permission of law, practices any profession ox-trade, or exigages in any business as an adult, he shall be-bound for all contracts connected with such px'ofessioxi, trade or business.” He was a mere clerk; therefore, he was practicing no trade or profession, and hardly carrying on any business as an adult, in the sense of the statute. That sense is axx engagement in business for himself; not the mere fact that he is hired to clex-k for others. But even if clerking were a business of his own, in the sense-of this section of the Code, we do not see the connection between a buggy and the business of clerking; and the statute makes him liable for k‘ contracts connected with such profession, trade or business.” No proof is in the-record that he used the buggy, or bought the buggy to use,, in the bixsiness of clerking.

For these reasons, we think it clear that the judgment of the court below is right so far as respects the infant.

4. Is it right in sustaining the plea of the mother that she signed-the- note as surety for her son, and. being a married woman, it is void as to her.

By the common law, she could not make the note at all. 1 Parsons on Bills and Notes, p. 276; also p. 79, and cases •cited. And because of her incapacity to make it, she would stand exactly like the infant; nay, in better condition to defend, because she could not ratify at all during the coverture, or after its termination, except on a new •consideration. 2 B. & Ad., 811; 8 A. & E. 467; 2 Sand., 311; 6 Ala., 737. In this state, even before the •act of 1866 and subsequent constitutional and legislative •enactments, tending to make her a feme sole, she could bind her unincumbered separate estate by promissory note. 32 Ga., 604, 606; 39 Ib., 41.

But the law in regard to a married woman, and all her rights and disabilities, has' undergone a complete revolution in this state since the act of 1866, which, in fact and :as all her property, makes her a feme sole, almost in every respect as if she never had been married, so far as property is concerned. Code, 1754. And this enactment is now part of the constitution. Code 5087. “ All property of the wife at the time of the marriage, and all property given to, inherited or acquired by her, shall remain her separate property and not be liable for the debts of ■her husband,” is now the sweeping provision of our fundamental law.

Still, by virtue of section 1783 of the Code, it is insisted !by defendant in' error that she cannot become surety for anybody. That section is: “ The wife is a feme sole, unless •controlled by the settlement. Every restriction upon her. power in it must be complied with; but while the wife may contract, she cannot bind her separate estate by any -contract of suretyship, nor by any assumption of the debts •of her husband, and any sale of her separate estate, made to a creditor of her husband, in extinguishment of his •debts-, shall be absolutely void.”

Under this section, construed in connection with the act of 1866 and. the constitution, in pari materia, it has been held by this court that she cannot become a surety now,, because the effect of the act of 1866, and of the constitutional provision, is simply to make all her acquisitions of property her separate estate, and they all stand on the same footing as a separate estate, settled without restrictions on her powers in the face of the settlement; and by the-Code, section 1783, even when a settlement was unrestricted, she could not become surety at all.

The question then recurs, how is a bona fide holder affected by her plea that she signed the note as surety ? Is it a nullity as to him, or can he collect it from her out of her own property ? In the case of Perkins vs. Rowland, decided at the September term, 1882,^* this court held that,, “ while a wife cannot legally assume a debt of her husband, yet where she has given a negotiable note for his debt, and.it has been transferred to a bona fide purchaser' for value before due, and without notice, it is valid and binds her. Therefore, when suit was brought by a third party, to whom such a note had been transferred, to foreclose a mortgage given to secure it, a plea to the effect that the note was given by the wife for the debt of her husband, but which did not allege that the plaintiff had received the note after maturity, or with notice, was fatally defective.”

The principle there decided, we think, covers the point now under consideration here.' By the Code, section 1783, the contract of the wife to pay the debt of the husband,, and the sale of her property to that end, is as illegal and void as is any contract of suretyship made by her. If, then, a negotiable note, given by her to pay the debt of the husband, be good in the hands of a bona fide holder, why is not a negotiable note, given by her to secure the' debt of her son, equally good in the hands of an innocent holder,? We fail to see any distinction between the two .cases. By the common law, let it be borne in mind, a married woman could not make a negotiable noté. By the laws of Georgia now, she may make such a paper, but not to pay her husband’s debt, or as surety for another. Inasmuch as she may make it and put it in circulation without regard to her coverture under the laws of this state, ¿vhen she does so put it in circulation and makes it negotiable, payable at any bank in Augusta, to the order of the payee» who indorses it to the plaintiff, before due, the plaintiff taking it for value, as collateral security for money loaned, is legally entitled to recover the amount of the notes from her estate, if she lias any which can be reached by a common law judgment. She put in circulation a bankable, negotiable paper, not as surety, but as joint maker, and between loss by herself and an innocent holder of this paper, justice, as well as law, would put the loss occasioned by the default or rascality of the payee on her, rather than on him.

To show how far this court, in its construction of the woman’s law of 1866, has untied her hands and freed her from the conjugal merger in the husband, see 44 Ga., 541-3; 48 Ib., 554, 561; 39 Ib., 41; 51 Ib., 147; 55 Ib., 406-9; 56 Ib., 344; 61 Ib., 512; 62 Ib., 733; 65 Ib., 571.

Judament reversed.

* 69 Ga , 661.