Bank v. Short , 1900 Pa. Super. LEXIS 301 ( 1900 )

Opinion by

Orlady, J.,

The First National Bank of North East brought suit against Helen A. Short to recover on a promissory note which it had purchased before maturity in the usual course of business. A plea of nonassumpsit was filed and, later, a special plea alleging coverture of the defendant and that the note upon which the suit was brought was not given by her for her own debt, but as surety for the debt of her husband.

The proviso of section 2 of the Act of June 3, 1887, P. L. 332, viz: “ Provided, however, that nothing in this or the proceeding section shall enable a married woman to become accommodation indorser, guarantor or surety for another,” and the positive declaration in section 2 of the Act of June 8, 1893, P. L. 344, viz : “ but she may not become accommodation indorser, maker, guarantor or surety for another,” leaves the instrument on which this suit is founded subject to the common law defenses of a married woman. Under the facts, as determined by the verdict, it was absolutely void for the reason that she had no power to make such an accommodation note. The act of 1887 unfettered a married woman to a limited extent only and did not clothe her with a general power to contract as a feme sole: Real Estate Ins. Co. v. Roop, 132 Pa. 496; Koechling v. Henkel, 144 Pa. 215.

The note in suit was not given for any of the three purposes viz: (a) where she engages in trade or business; (b) in the management of her separate estate; nor (o) for necessaries, in regard to which, under the act 1893, a married woman may “make contracts of any kind, and give obligations binding herself therefor.” The act of 1887 was expressly repealed by the act of 1893, but the quoted proviso of the act of 1887 was incorporated in the latter, and the decisions under the earlier act apply with equal force to both.

In this case the wife is the drawer of the note. In Patrick & Co. v. Smith, 166 Pa. 526, it is said that, “ the act does not use the words ‘ accommodation drawer;’ but, in substance, what is an accommodation drawer but a surety for him to whom the paper is delivered and for whose benefit it is made ? ‘ The undertaking in suretyship is immediate and direct, that the act shall be done; if not done, the surety becomes at once responsible :’ Reigart v. White, 52 Pa. 438. The debt here was the debt of the husband; as between him and the banker he alone was bound to pay it; the wife gave her own obligation, by the terms of which she at once became responsible, and hence a surety for her husband’s debt or the debt of another. If the note, under the statute, had bound her, and she had been compelled to pay, .she would have had a right of action against him, on the principle of her suretyship for him, and in no other right.”

In Harper v. Oneil, 194 Pa. 141, the Supreme Court said that, “ the form of the note might have led one without knowledge of the transaction to regard the wife as the principal debtor, and. have required proof from her that she was an accommodation maker; but the party who made the loan was not without knowledge.” The plaintiff’s cashier, when he purchased this note for the bank, knew that the defendant was then a married woman, and if he had made inquiry at that time he would have learned that she was an accommodation maker on this note, for her husband; and that, as in Real Estate Co. v. Roop, supra, “ it was given upon his importunity, and to aid him in his business, one of the very perils from which the law ought to protect a married woman.” So given, the note was absolutely void, it being of a kind expressly prohibited by the act of assembly: Weigle v. Mercer, 1 Pa. Superior Ct. 490; Harley v. Leonard, 4 Pa. Superior Ct. 431; Henry v. Bigler, 5 Pa. Superior Ct. 503.

The act of 1893 is now the source of contracting power of a married woman. By it she “ may not become accommodation maker, indorser, guarantor or surety for another.” This species of liability she is still unable to incur, and hence her inability to make such contracts must be adjudged upon the same principles and authorities as were applicable prior to the new legislation. Governed by those principles, and acting upon those authorities, thei'e is no room for argument or discussion upon the question of her liability: Wiltbank v. Tobler, 181 Pa, 103,

The facts being found by the jury as assumed in the points submitted by the defendant, it was proper to affirm them.

It was not error to receive in evidence the supplemental answer of the defendant. The plaintiff opened the door to this inquiry in seeking to bind her by her declarations made in the answers in the attachment proceedings. She had the right to explain the circumstances under which they were made, and that she had inadvertently misstated a fact. The apparent contradictions in her testimony and supplemental answer from the answers made in her answers in the attachment proceedings would affect her credibility, but the evidence was properly submitted to the jury. She was not making evidence for herself in notifying the plaintiff, as soon as she was advised of her misstatement of a fact, that an explanation would be urged in her defense. To give prompt notice rather than to withhold it until the trial was evidence of her fairness. The verdict of the jury establishes that in giving the note she was an accommodation surety for her husband; that she was not engaged in business of any kind; that the note was in part payment for shares of stock which were purchased by her husband from L. Merket, and that despite the device of the assignment of the stock to her, she never knew of, authorized or ratified it. The note being absolutely void as to her when it was signed, no subsequent negotiation could vitalize it into a form which she could not defend against. Every one is presumed to know the law, and when a banker discounts the promissory note of a person known by him to be a married woman on which others are associated, he is chargeable with knowledge that there is a statutory limitation on her power to make such paper. It is not a recent restraint, but existed at common law, and has been, sedulously preserved through all legislation affecting her power to contract.

The assignments of error are overruled and the judgment is affirmed.

W. D. Porter, J., would reverse upon the seventh assignment of error.