122 A. 582 | Vt. | 1923
Lead Opinion
The three promissory notes upon which the plaintiff seeks to recover are dated at Barton, Vermont, June 1, 1917, payable to the plaintiff or order at a fixed future time, all of which were past due when suit was brought thereon. Each note is signed on its face by H.A. Harding, Helen Bickford, and S.M. Bickford. The last two persons named were at the time of signing and now are husband and wife. The notes in terms of liability are alike and read: "We each as principal jointly and severally promise to pay," etc.
Harding is dead. S.M. Bickford made no defense, and judgment was rendered against him on a directed verdict. Helen Bickford (hereafter referred to as the defendant) answered that she signed each of said notes as surety for her husband's debts and in no other capacity, and she defended solely on that ground. To this answer no reply was filed but the question of estoppel was raised at the very outset, and it is apparent from the course of the trial, as shown by the transcript which is made controlling, that the parties and the court treated the case as though a reply by way of estoppel was in, and we treat it in the same way.
At the close of the evidence the plaintiff moved that a verdict be directed in its favor on assigned grounds, two of which were: That because of the language of the notes, promising *169 "each as principal," the defendant is estopped from claiming that she was a surety and relieved from liability; and that, because of the Negotiable Instruments Act she has established no defense. Before ruling upon this motion the court submitted to the jury three special questions: (1) Whether the defendant, Helen Bickford, signed the notes in question solely as surety for the debts of her husband; (2) Whether she signed them solely as surety for debts of Harding; (3) Whether she signed them as surety for debts of both her husband and Harding. The first of these questions the jury answered "Yes," and each of the others, "No." The court then overruled plaintiff's motion for a verdict, to which plaintiff excepted. Thereupon defendant moved that a verdict be directed in her favor, which motion was granted and exceptions saved; and on the latter verdict judgment was rendered for her, to which also exception was saved. As we construe the record these exceptions are based on the same ground as plaintiff's motion for a verdict. The two grounds upon which plaintiff relies as sufficient in law to require the granting of its motion are interactive and may be best considered together.
Ordinarily questions pertaining to promissory notes, made and delivered after the Negotiable Instruments Act became effective, June 1, 1913, are to be determined solely by the provisions of that enactment, but that statute has nothing to do with the policy of the State as to the contractual rights, privileges, and liabilities of married women. It neither directly nor indirectly makes any reference to them nor to the provisions of the enabling statute. The Negotiable Instruments Act presupposes the paper to be such as the parties are in law capacitated to make and the courts to enforce. Its general terms cannot be said to repeal, modify, or enlarge the positive provisions of the statute giving married women the right to contract, with corresponding liability — subjects other than the negotiability of valid paper. Rules of construction do not permit it. Raleigh County Bank v. Poteet,
By the enabling statute a married woman is empowered to make contracts with any person in the same manner and to the same extent as if unmarried, except with her husband or affecting property in which he has marital rights. G.L. 3521; Barrows v.Dugan's Estate,
The construction of these instruments and her liability thereon, apart from the prohibited suretyship, are to be governed by the provisions of the Negotiable Instruments Act (so far as therein provided for). This is fairly implied from the provision that in any case not provided for therein the rules of law and equity, including the law merchant, shall govern (G.L. 3060), and such is the intent of the Act. Howard National Bank v. Arbuckle,
What effect, if any, does the incapacity of the defendant to become surety for her husband's debts have on her defense to the notes in question?
This presents a question not before determined by this Court, since it involves the responsibility of a married woman on negotiable instruments signed on their face by a third person, herself, and her husband, wherein "each as principal jointly and severally promise to pay," etc. During the trial defendant was permitted to introduce evidence tending to show that she signed the notes as surety for her husband and in no other capacity. The reception of this evidence was seasonably excepted to on the same ground of estoppel as stated above in connection with plaintiff's motion for a directed verdict. *171
One of the incidents of the enlarged powers of a married woman under our statute is that she may be estopped by her acts, conduct, or contracts, within such powers. Smith Co. v. Weeks,
Consequently the fact that defendant's husband was a joint and several maker of the notes in suit does not change her liability thereon to the payee as a joint and several maker "as principal" with Harding, from what it would be if her husband were not a signatory thereto. Under the statute, she was competent to enter into contracts such as are shown by these instruments, either for herself as an interested principal, or as an accommodation party for the purpose of lending her name to Harding, and let the facts be either way, she was competent to obligate herself thereon in terms absolutely requiring her to pay the same, thereby making herself primarily liable within the meaning of G.L. 2868. This the defendant did by signing the notes in terms "as principal," thereby in unmistakable language assuming to contract and contracting in that character. And her engagement was by statute that she would pay the notes according to their tenor. G.L. 2929.
Defendant expressly states in the notes that she signed them "as principal," and there is nothing on their face indicating that she signed them in any other capacity. To permit her (beyond the prohibited suretyship) to give evidence that she signed them in some other capacity would be in violation of the familiar rule against the admission of parol evidence to change or vary either the terms or legal effect of a written instrument, a rule which obtains even though the payee had knowledge that in fact she was signing in some other or different capacity. In re Barron'sEstate,
Estoppels by contract are of two kinds, (1) estoppel to deny the truth of facts agreed upon and settled by the terms of the contract, and (2) estoppel arising from the acts done under or in performance of the contract. "If, in making a contract, the parties agree upon or assume the existence of a particular fact as the basis of their negotiations, they are estopped to deny the fact so long as the contract stands, in the absence of fraud, accident, or mistake." 21 C.J. 1110, 1111; Headly v.Hoopengarner,
On the foregoing authorities there should seem to be no doubt that the estoppel here invoked is an estoppel by contract, and we hold that in view of the terms of defendant's undertaking on the notes in suit, and of her general powers to contract with persons other than her husband, and apart from her disabilities mentioned above, she is in law estopped from saying that she did not sign the notes in any other capacity than as surety for her husband's debts; and we further hold that the form of her undertaking goes to the force and effect of the contract in its construction and operation, and therefore any evidence showing her to have been in fact, as between the signers themselves, only a surety for her husband even with plaintiff's knowledge at the time she signed, is incompetent and wholly immaterial; and to permit such fact to be shown resulted in the court's giving the notes a construction inconsistent with the express terms of the undertaking, and an operation unwarranted in law. (This is not enforcing the contracts made, but different ones which were not entered into by the parties.)
It is said that a similar question was raised in the case ofWetmore Morse Granite Co. v. Ryle et al., supra. But it is enough to say of that case in this respect that the wife did not sign the note there involve in terms "as principal," and no question of estoppel was invoked. The positive authority of a decision is co-extensive only with the facts on which it is based. Freeholder v. Jersey City, 85 N.J. Law, 185, 88 A. 1061.
Since the defendant is bound in law for the amount due on the notes in suit, irrespective of any undertaking as surety for her husband, the fact of such relation between the two in connection therewith is immaterial, affords her no protection, and consequently evidence thereof was inadmissible and wrongly received.
It follows from the foregoing holdings that the plaintiff was entitled to have its motion for a directed verdict granted, and the overruling of it was error. It was also error to order *176 a verdict in favor of the defendant, also to render judgment in her favor thereon. In view of these holdings it is unnecessary to consider any further questions presented.
The judgment in favor of defendant Helen Bickford is reversed,and judgment is rendered against her for the amount due on thenotes in question, with costs.
Dissenting Opinion
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.