50 Ga. App. 442 | Ga. Ct. App. | 1935
Lead Opinion
1. While a married woman may contract, she can not bind her separate estate by any contract of suretyship. Civil Code (1910), § 3007. It may be safely asserted that there is no matter of public policy more firmly fixed in this State than that which outlaws a contract of suretyship on the part of a married woman, as was said by Russell, C. J., in Ulman, Magill & Jordan Woolen Co. v. Magill, 155 Ga. 555 (117 S. E. 657). The question whether there are any conceivable instances in which the laws of Georgia will aid in the .enforcement of a married woman’s obligations of suretyship must be answered in the negative. See Thompson v. Wilkinson, 9 Ga. App. 367 (71 S. E. 678); Hester v. Dreyer, 19 Ga. App. 816 (92 S. E. 299). This restriction applies to all contracts, whether in behalf of the husband or another. Saulsbury v. Weaver, 59 Ga. 254. Where any scheme or arrangement makes a married woman ultimately liable to pay the debt of another, it is condemned by section 3007 of the Code. National Bank of Tifton v. Smith, 142 Ga. 663 (83 S. E. 526, L. R. A. 1915B, 1116), Milton v. Setze, 146 Ga. 26 (90 S. E. 469). Of course such contracts are “not illegal, but merely void or voidable at her election as against the original payee.” Colquitt v. Dye, 29 Ga. App. 247 (114 S. E. 643). If a married woman signs a note apparently as principal while in fact she is in truth surety for another, which fact is known to the lender, the note is void at her election as against the lender, in so far as the married woman is concerned. Norris v. Pollard, 75 Ga. 358; Duggan v. Monk, 5 Ga. App. 206 (62 S. E. 1017); Coll Co. v. Miller, 30 Ga. App. 148 (117 S. E. 113); Cheshire v. Hightower, 33 Ga. App. 793 (127 S. E. 891).
2. As between the plaintiff and the defendant married woman, who signed the note in question ostensibly as the sole principal, to secure the debt of another, she was under the burden of showing, not only that she intended to sign the note as surety, but also that the plaintiff, who was the lender, accepted it with knowledge of that fact. Hall v. Rogers, 114 Ga. 357, 359 (40 S. E. 250); Tuck v. Kellum, 36 Ga. App. 465 (137 S. E. 102); Bennett v. Danforth, 36 Ga. App. 466 (137 S. E. 285).
3. The defendant, a married woman, executed the note sued on, as a second renewal of a note which she executed in her own name as principal for $300, while in truth the money was being borrowed by another, an agent and employee of the lender, who
Judgment affirmed.
Concurrence Opinion
concurring specially. This is a suit on a note signed •by the defendant alone, and the defense is that she was a surety for some one else, not her husband. There is no plea or evidence that she signed this note through mistake or fraud, or that any one else was to have signed the note and was prevented from so signing. The Civil Code, § 3538, says: “The contract of surety-ship is that whereby one obligates himself to pay the debt of another in consideration of credit or indulgence given, or other benefit given to his principal, the principal remaining hound therefor” (italics ours). In the present case there is no contention that there is any principal who is bound to pay this obligation. In Jordan v. Douglas Grocery Co., 27 Ga. App. 296 (108 S. E. 139), it was said: “The very essence of a contract of suretyship is that there 'should be someone liable as principal. This necessarily contemplates that where such a note is given there must be at least two parties who signed it and are liable for the payment thereof, the principal and the surety. As only one person signed the note sued on, that person must necessarily be the principal.” The judgment for the plaintiff was properly directed.