37 A.2d 130 | Pa. | 1944
As some misunderstanding apparently persists in regard to the liability of a married woman on a negotiable instrument of which she is an accommodation maker or endorser the present case invites an attempt to clarify the law on that subject. It would seem that the confusion is due to a failure to distinguish between liability on the note itself and liability with respect to a judgment obtained or confessed on the note.
W. O. Lashell and Elizabeth H. Lashell, his wife, executed a judgment note dated February 13, 1932, to the First National Bank of Verona, Pennsylvania, in the sum of $2,035, payable thirty days after date. It was the last of a long series of renewals, the original note having been executed in 1930. On April 21, 1936, the receiver of the bank entered judgment against the parties, but, as far as the record discloses, no notice of this action was given to Mrs. Lashell nor was any demand ever made on her for payment of interest or principal. According to Lashell the money obtained on the note was credited by the bank to his account and none of it was ever received by his wife. She died on May 20, 1940. On March 6, 1941, the receiver issued a writ of scire facias against the Lashells and on April 18, 1941, entered judgment against the husband. On October *244 25, 1941, he issued a sci. fa. against Phyllis Walsh, administratrix c. t. a. of the wife's estate, to continue the lien of the judgment entered against the decedent in 1936. On December 17, 1941, Phyllis Walsh, administratrix, obtained a rule to show cause why that judgment should not be opened. The rule was made absolute, and at the trial of the issue (Phyllis Walsh, administratrix, having been substituted as defendant) the jury concluded that Mrs. Lashell had signed the note for the accommodation of her husband and accordingly found a verdict in favor of defendant, but the court granted plaintiff's motion for judgment n. o. v. and entered judgment for the amount of the note with interest.
The Act of June 8, 1893, P. L. 344, section 2, provides that a married woman "may not become accommodation endorser, maker, guarantor or surety for another". This does not grant her any choice or discretion, but is an absolute interdiction of her acting in any of the capacities referred to. The purpose of the legislation is to prevent her from yielding to the temptation to assist others, especially her husband, with her own financial resources, even though such protection may be unwelcome and run counter to her earnest desires; it represents the remnant of a public policy rooted in an almost immemorial past. "The law, in forbidding a married woman to become surety for another, protects her not only against others who may importune her to become their guarantor or surety — it protects her even against herself.": Sears v. Birbeck,
As the law denies to a married woman the power to enter into such an obligation it necessarily follows that a note signed by her as an accommodation maker or endorser is, as to her, utterly void. "The validity of every contract, whether in the form of negotiable paper or otherwise, is dependent upon the capacity of the parties thereto to contract. Unless the requisite capacity *245
exists, the contract is unenforceable against the purported obligor, regardless of the situation of the party seeking enforcement. . . . The absence of capacity nullifies the attempted contract at the outset, and no act of another party, no bona fides on his part, can give vitality to it — certainly when against the interest or will of the defendant": 8 Am. Jur. 327, section 613. The renewal, therefore, of an accommodation note creates no greater liability of the wife than the original note,1 for obviously she cannot, through any alleged estoppel, defeat the purpose of the statute. The doctrine of estoppel has no application to the case of a party incapable of making a contract. The court below was mistaken in concluding that decedent could acquire the capacity of an effective accommodation maker or endorser by the simple expedient of renewing an original note which was itself void. Nor is a married woman barred from asserting her incapacity by the fact that she falsely certified on the face of the note that it was given for her own benefit and not as accommodation for another:Murray v. McDonald,
While it is thus clear that a married woman's signature to a note as an accommodation maker or endorser *246
is of no validity, it must be remembered that she may properly make or endorse a note other than by way of accommodation, and as the Act of 1893 makes her capacity the rule and her incapacity the exception the presumption in every case is that her note is valid and the burden is on her to prove that she acted as an accommodation party: Bank v. Poore,
The question then arises: was there laches in the present case? Plaintiff relies upon Wilkes-Barre Deposit Savings Bankv. Hermann,
The court below entered judgment for plaintiff n. o.v. on the ground of estoppel and laches; its action was erroneous and must be reversed. However, in dismissing plaintiff's motion for a new trial it stated that it did so for the reason that judgment n. o. v. had been granted. It should be given the opportunity to pass upon the merits of that motion. *248
The order entering judgment for plaintiff n. o. v. is reversed; plaintiff's motion for a new trial is reinstated, and the record is remanded for such action in regard thereto as the court below may deem proper; costs to abide the event.
