Turner v. Gill , 105 Ky. 414 ( 1899 )

JUDGE HOBSON

delivered the opinion of the court.

This is an appeal by appellants from a judgment against them upon a promissory .note executed to appellees, Turnelly & Gill, to secure them against possible loss growing out of advances to Bradford & Turner for the purchase of loose tobacco. Previous to the execution of the note, L. A. Bradford and Q. M. Turner, constituting the firm of Bradford & Turner, were .engaged in the. business of buying loose tobacco and shipping it to Turnelly & Gill, and they had engaged to do so. during the tobacco season which began in the fall of 1893. Turnelly & Gill were warehouse-men in Clarksville, Tenn., and made advances at various times to Bradford & Turner, the business being carried on in the name of L. A. Bradford. They were- to charge interest on their advances, sell the tobacco shipped them, and credit the proceeds on the account. Fearing that, at the price tobacco was bringing, there would be a loss, they sought to have Bradford & Turner. protect them. So the note sued on was given on March 12, 1891; and Bradford & Turner, together with appellaiA B. A. Turner, also executed a writing pledging their individual crops of tobacco for the payment of such loss as might result. There was a loss of $303.18, for which the court below gave judgment against appellants on the note.

Q. M. Turner denies that he was a partner of Bradford in this transaction, but we think the record shows that he was a partner. It is also claimed by the appellants that, after the execution of the note, appellant L. A. Turner became the partner of Bradford in the purchase of the tobacco. If this be true, Turnelly & Gill received no notice of the fact; the business being conducted, as before, in the name of L. A. Bradford.

Appellant L. A. Turner denies liability for certain advances made before the execution of the note, on the ground that they were made to Bradford individually, and' not on account of the firm of Bradford & Turner. The advances were made in the purchase of tobacco during the tobacco season beginning in the fall of 1893. The writing which Turnelly & Gill delivered when the note was given shows the note was to protect them for .the advances made during this season to Bradford & Turner.

It is also contended in behalf of appellant L. A. Turner that the note was intended only to secure advances thereafter made. But at the time of its execution advances had been made, and tobacco had been bought with the money thus advanced. It was contemplated that Bradford & Turner would ship such tobacco as had been bought, and buy other tobacco and ship it; and the plain meaning of the writings, taken as a whole, was that they would secure Turnelly & Gill against any loss on that season’s business. If L. A. Turner became a partner of Bradford after the execution of the note, that would not affect her liability in any way in this action.

It is also contended in behalf of appellant L. A. Turner that the judgment as to her should be reversed because it appears from the record that at the time the note was given she was a married woman, the wife of Q. M. Turner. The note sued on was given before the passage of the act approved March 15, 1894, removing to some extent the disabilities of married women; but the suit was filed after that act took effect. Slie pleaded in her answer an elaborate defense, but did not plead coverture. The pleadings do not show that she was a married woman when the note was given. After judgment, pleadings are to be construed so as to sustain it, if this can be fairly done; and, tested by this rule, the amended petition shows only that she was a mai’ried woman when it was filed, and not that she was a married woman when, she executed the note. But this fact is shown by the exhibits and proof in the case. The same exhibits also show this: “Mrs. L. A. Turner signs this note as a feme sole, and binds her estate for its payment.” This may not, perhaps, be sufficient to show that Mrs. Turner was a feme sole, but it was at least sufficient to suggest the question whether she was. bound or not; and we are constrained to believe that, in the elaborate defense made for her, the plea of coverture, which, if available, would have defeated the action at the threshold, was not overlooked, but deliberately omitted.

The question therefore arises, can a .married woman, who is authorized by the statute to sue and be sued as a single woman, deliberately refuse to plead her coverture- when sued upon an obligation given before that statute was passed, and, when she has been beaten on the issues she saw fit to- raise, obtain a reversal in this court by reason of her coverture, when she did not present that question in anj^ way to the court below?

Section 114 of the Code of Practice provides that parties must before trial form a material issue concerning each cause of controversy. Section 886 also provides that judgment shall be given for the party whom the pleadings entitle thereto, though there may have been a verdict against him. Pursuant to these sections, it has been held that the defendant is bound by his pleading, and the court can not consider a defense which he failed to set up in his answer. (Demmien v. Bowler, 16 Ky. Law Rep., 399). We see no reason why appellant Turner should not be governed by the same rule. She has been authorized to sue g.nd be sued as a single woman, and stands before the law in this respect just as a divorced woman or a widow would have stood, prior to the passage of the statute referred to, if sued upon an obligation made during her coverture. 1 Chit. PI. p. 449, thus lays down the rule: “Coverture at the timq when the supposed contract was entered into must be pleaded in bar.” It seems to us that this must necessarily be the rule under our Code of Practice, which requires the parties to state in their pleadings the facts relied on for their cause of action or defense. The appellant Turner has had her day in court, and we see no reason for setting aside the judgment against her, because of a defense she failed to plead, that would not apply to any other litigant; for by the statute she is given, in effect, the rights of a single woman. Previous to' the passage of this act a married woman had no power to enter her. appearance to an action or to employ an attorney, or to make a contract binding herself personally. She could bind her estate, but could create no personal liability by contract. Her existence was merged in her husband, and she could only appear in an action by him. Under this system it might well be that a personal judgment against a married woman would be urn authorized in a suit on a contract made by her, and be set aside on appeal, for the reason that a judgment is but a contract of record, and she could create no personal liability by this contract, as she had no power to create a personal liability by contract. But when she may contract and sue and be sued as a single woman, the reason for this rule ceases, and she is bound by the judgment, just as she would be by any other nontract made at the time it is entered. This adds nothing to the obligation of. the note in this case. The question is not whether the note wás a valid obligation or not. That was a question to be litigated when she was sued, and in litigating this question, appellant stood just as a widow Avould have stood under the former practice, and might put in such defenses as she saw proper. If she failed to make a defense that would have-been available to her, she is bound by her pleading, like any other litigant; and the judgment against her can not be reversed on account of her coverture, as this defense appears first to have been presented in this court. The judgment is therefore affirmed.