93 P. 504 | Idaho | 1908
Lead Opinion
This is an appeal from the judgment and -an order striking a proposed statement from the files and refusing to settle the same. The trial court had made an order •extending the time for preparing the statement to June 7, 1906. Thereafter a further order was made, but the second order was not made until after the expiration of the time al
On the appeal from the judgment the only question presented for our consideration is: Can a married woman be held for the payment of a promissory note executed by her as a comaker with a person not her husband where the debt was not contracted for her own use or for the use or benefit of” her separate estate, or in connection with the control and management of her separate estate or in carrying on or conducting business with her separate estate ? It is admitted that under the repeated decisions of this eourt, she would not be liable for this debt if the party for whose benefit the debt was incurred had been her husband." Indeed, it has been repeatedly so held by this court. (See Dernham v. Rowley, 4 Ida. 753, 44 Pac. 643; Jaeckel v. Pease, 6 Ida. 131, 53 Pac. 399; Strode v. Miller, 7 Ida, 16, 59 Pac. 893; Holt v. Gridley, 7 Ida. 416, 63 Pac. 188.) This case was here once before (Bank of Commerce v. Baldwin, 12 Ida. 202, 85 Pac. 497), and on that appeal the court held that “A married woman cannot bind herself personally for the payment of a debt that was not contracted for her own use or for the use and benefit of her separate estate, or in connection with the control and management thereof or in carrying on or conducting business therewith.” We might rest our decision upon the opinion in the last appeal as being the law of the case, but since the question squarely arises on this appeal as to the liability of the wife as a surety or guarantor for the debt of a stranger, we have thought it best to pass on that point. The findings of fact upon which our decision and conclusion must necessarily rest in this consideration are as follows: “That the defendant
The act of March 9, 1903, repealed sections 2498 and 2499 of the Revised Statutes, with reference to a married woman, which sections had previously given the husband the management and control of her sepai’ate property, and had also provided for her becoming a sole trader, and instead thereof sec. 2 of the amendatory act provides that “during the continuance of the marriage the wife has the management, control and absolute power of disposition of her separate property, and may bargain, sell and convey her real and personal property, and may enter into any contract with reference to the same in the same manner and to the same extent and with like effect as a married man may in relation to his real and personal property.” (Sess. Laws, 1903, p. 346.) It is argued by counsel for appellant that any and all contracts that a married woman can possibly enter into necessarily have reference to “her separate property,” and that she may therefore enter into any contract that could be entered into by a feme sole. It is further argued that no contract can be entered into but what -has reference to property, and that therefore a contract by a married woman which has reference to “her separate property” will comprehend any and all contracts she might enter into. That position appears to be supported by the supreme court of Kansas in Deering v. Boyle, 8 Kan. 525, 12 Am. Rep. 480, wherein the supreme court in considering the liability of a married woman on a promissory note executed for the debt of her husband, and in construing a statute identical with ours, said: “It must be equally clear that such a contract as the note sued on has reference, more or less remote, to the general property of the person signing the contract. If it has not
In both North and South Dakota the statute provides that “either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might, if unmarried, subject, in "transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title on trusts.”
The supreme court of North Dakota, in Colonial etc. Mtg. Co. v. Stevens, 3 N. D. 265, 55 N. W. 578, in considering their statute and the liability of a married woman as surety on a promissory note for her husband, said: “This statute is very broad in its language. It is true that the contract must be one respecting property; but we cannot assent to the view that it must relate to the married woman’s separate property. .It would have been easy to have said so in-express terms had such been the purpose of the law-making power. When the legislature has established the single and simple test that the -contract must be one respecting property generally, we have no right to amend the law, and thereby inject into the act a further limitation which will exclude many contracts respecting property.” It will be seen from the foregoing quotation •that the North Dakota court practically conceded that if the statute read “with reference to her separate property” as does •our statute, the action could not have been maintained. A like statute was under consideration later by the supreme •court of South Dakota, in Colonial & U. S. Mtg. Co. v. Bradley, 4 S. D. 158, 55 N. W. 1108, and the court cited Mortgage Co. v. Stevens, supra, with approval, and in commenting on this statute, said: “The learned counsel for the respondents contends that, the authority of a married woman to enter into •contracts being limited to contracts ‘respecting property,’ this limitation should be construed to mean her separate property; but to so construe the limitation would require us to •'interpólate into the section terms that are not found in the ■section, which this court would not be authorized to do. -It .must be presumed that if the legislature intended to so limit
The statute of California has been for many years the same as that quoted from North and South Dakota, and the California court has held that it authorized a contract of the •character of the one under consideration here. (Marlow v. Barlew, 53 Cal. 456; Good v. Moulton, 67 Cal. 536, 8 Pac. 63; Farmers’ Bank v. DeShorb, 137 Cal. 685, 70 Pac. 771.) The •same is true in Nevada. (See Cartan v. David, 18 Nev„ 310, 4 Pac. 61.) In view of the material essential in which our statute differs from the statutes in California, Nevada and the Dakotas, we feel that the decisions from those courts are not in point in this consideration, further than the general reasoning of the cases might appeal to the court as throwing light upon the legislative intent. The two Dakota cases, however, admit that if their statutes read the same as ours, their decisions would probably have been different. It is insisted by counsel that our amendatory statute must have been taken from the statute of Kansas, and that with it we necessarily adopted the Kansas construction as embodied in Deering v. Boyle, supra. (Shoshone County v. Profitt, 11 Ida. 772, 84 Pac. 712; Stein v. Morrison, 9 Ida. 426, 75 Pac. 246.) If it were conceded that the amended statute, sec. 2 of the act of March 9, 1903, had been taken from the Kansas code, still there would be this objection to the adoption of the Kansas construction thereof. The supreme court of this state has, through a continuous line of decisions for nearly twelve years, held that “in order to charge the separate property of the wife and render it liable to levy and sale, it must be alleged in the complaint and proven that the debt was incurred for the use and benefit of her separate property or for her own use and benefit. ’ ’ Sec. 2504, Rev. Stat., has lent a great deal of force to that conclusion, and that section stands to this day without amendment. Notwithstanding this interpretation of the statute as it has existed in this state, the legislature, although meeting biennially, never attempted in any way to change the rule or announced a different legislative intent until the act of March 9, 1903. When it did make a change,
For interesting American reviews of the English authorities on this subject, see Ewing v. Smith, 3 Desaus. Eq. (S. C.) 417, 5 Am. Dec. 557; Jaques v. Trustees First Methodist Episcopal Church, 17 Johns. 548, 8 Am. Dec. 447; Yale v. Dederer, 18 N. Y. 265, 72 Am. Dec. 503; 22 N. Y. 450, 78 Am. Dec. 216; Cartan v. David, 18 Nev. 310, 4 Pac. 61.
Concurrence Opinion
Concurring. — I concur in the conclusion reached, for, as I view this case, the former opinion rendered by a divided court is the law of the ease on the questions decided by my associates on this appeal. For that reason it is not necessary for me to express my views of the questions decided on this appeal.