62 Neb. 223 | Neb. | 1901
This is an action brought by the plaintiff in error, the Citizens State Bank of Wood River, against Thomas J. Smout and Josephine Smout, his wife, in the district court of Hall county, on July 14, 1897. The petition filed was in the form usual upon promissory notes, and set out two notes for $1,000 and $800, respectively, signed by both defendants. Thomas J. Smout made default. Josephine Smout filed an answer, in which she admitted signing the notes set out in the petition, but pleaded coverture, and that she signed the notes as surety for her husband only; that she received no consideration whatever; did not sign the notes for the purpose or Avith the intention of binding her separate estate or property, and that said notes, or either of them, did not concern her separate property, trade or business, and that she did not sign them intending in any way to bind her separate estate. Judgment Avas entered in favor of the bank and against Thomas J. Smout, and in favor of the defendant, Josephine Smout, dismissing the case as to her with costs.
Two errors are particularly relied upon by plaintiff in error to obtain a reversal of the judgment of the trial court. In the trial of the cause, over the objections of plaintiff in error, the court permitted each of the defendants to testify to conversations had between them at the time Thomas J. Smout presented the notes in question to his wife Josephine, and asked her to sign them. The testimony discloses that at this time Thomas J. Smout was a director in the bank; that he was owing the bank for borrowed money, the amount represented by these two notes; that the bank examiner had been complaining that the bank held too much paper with only one name upon it, and the other officers of the bank asked Thomas J. Smout
Plaintiff next complains of the giving of instruction No. 6, which reads as follows: “You are instructed that in order [to] bind a married woman upon a note or contract entered into while the marriage relation subsists, it must be made with reference to or upon the faith and credit of her separate estate or business, or in relation to her separate estate, trade, or business, and you will determine whether Josephine Smout so signed the notes in question, and bring in your verdict accordingly.” If this instruction is open to any objection, it is that it states the law more favorably to plaintiff than can be upheld. This being true, the bank is in no position to complain because it was given. Counsel for plaintiff in error complains of the decisions of this court construing what is known as the “Married Woman’s Act,” and admits that if the law is as frequently announced by this court, there was no error in the giving of the instruction complained of. The precise question involved has been so many times passed upon by this court that it would be of no advantage to reexamine the question. In the case of the Grand Island Banking Company v. Wright, 53 Nebr., 574, the present chief justice, in a very able opinion, after a careful exami
From what has been said it appears that the trial court could with propriety have instructed the jury to bring in a verdict in favor of the defendant, Josephine Smout. There being no error in the record, the judgment of the lower court should be affirmed.
For the reasons given in the opinion the judgment of the lower court is
Affirmed.