Citation Numbers: 122 A. 582, 97 Vt. 166
Judges: BUTLER, Ch. Supr. J.
Filed Date: 10/3/1923
Status: Precedential
Modified Date: 1/13/2023
I agree that a married woman may be estopped by her representations, oral or written. But I cannot agree with the majority as to the character and attributes of the estoppel here involved or its effect upon the disposition of the case. When a married woman's capacity to contract is in question, the estoppel applicable, if any, is the ordinary equitable estoppel, and is effective only when her representations have been ignorantly relied upon to one's prejudice. This estoppel wholly differs from those involved in the cases cited by the majority, which are not based upon a representation at all, but wholly on a rule of commercial policy. Mrs. Bickford is not estopped unless the Bank relied upon her representation as to the character of her obligation in ignorance of its true character. An estoppel against her can only be set up to avert an injustice. No injustice can here result if the Bank knew that she signed only as surety for her husband — which the statute did not allow.
Thus it was held in First National Bank v. Rutter, 91 N.J. Law, 424, 104 A. 138, where a married woman signed a note reading on its face "Value received for my own use and benefit," that she was not estopped from asserting her disability, because the bank knew all the time that the above quoted words were false.
In Crumbaugh v. Postell, (Ky. App.) 49 S.W. 334, it was held that a married woman who signed a note for the debt of her husband adding to her signature the word "principal," was not estopped from asserting her statutory incapacity because Postell knew the facts and was not deceived. Indianapolis Brewing Co. v.Behnke,
TAYLOR, J., concurs in this dissent.