Gunn v. Wilson Co. ( 1917 )

Jenkins, J.

1. Where a married woman signs a promissory note as principal, there is a presumption of law that the instrument expresses the true intent of the contract. See Longley v. Bank of Parrott, 19 Ga. App. 701 (92 S. E. 232).

2. The burden imposed upon the defendant in this case does not appear to have been in any wise met by the evidence introduced for the purpose of sustaining her plea of suretyship, nor was there any evidence to support her plea of payment. Eor these reasons the judge did not err in directing a verdict for the plaintiff.

3. Under the rules of the common law, a married woman could not bind herself by the execution of a promissory-note. Howard v. Simpkins, 70 Ga. 322; Hager v. National German American Bank, 105 Ga. 116 (31 S. E. 141) ; 21 Cyc. 1316 (b). Where the force and effect of such an instrument are dependent upon the law of another State, and no law of that State is pleaded, it will be presumed that the common law is of force with reference to the defenses set up by the defendant. Bailey v. Devine, 123 Ga. 655 (51 S. E. 603, 107 Am. St. R. 153) ; Ellington v. Harris, 127 Ga. 85 (56 S. E. 314, 119 Am. St. R. 320) ; Lay v. Nashville &c. Ry., 131 Ga. 345 (62 S. E. 189). But even if the note in question should have been considered as a Elorida contract, the defendant will not now for the first time be heard to claim its illegality on the ground that at common law the maker was unable to execute it and that it was therefore void, where the record entirely fails to disclose that such defense had been in any way raised, either by plea, demurrer, or other method) so as to invoke a ruling of the lower court on such point. This is true even though .the plaintiff himself may have sought to invoke in his behalf other rules of the common law. Martin v. Moore, 63 Ga. 531 (4) ; Bailey v. Devine, supra; 8 C. J. 932, § 1217 (10); 21 Cyc. 1565 (b, c, d) ; Johnson v. Latimer, 71 Ga. 470 (3); Tift v. Wight & Weslosky Co., 113 Ga. 681 (2) (39 S. E. 503).

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.