37 La. Ann. 679 | La. | 1885
The opinion of tlie Court was delivered by
The suit is upon mortgage notes of a married woman for $8,000 and tlie defence is that they were executed for her husband’s debt and under bis marital influence and she is not bound thereby.
Dora Lambetli married T. O. Stark in 1868. She owned two plantations jointly with her sister. He owned’nothing. They made a marriage contract that there should not be a community of acquets and gains, that each shall remain separate in estate, and the wife retained the administration of#her property brought in marriage and all that she should thereafter acquire.
The two plantations were cultivated iu 1871 under a partnership entered into by Johnson & Goodrich of New Orleans and T. O. Stark as agent of Ms wife and her sister, wherein the two owners “put the use of their lands rent-free against the capital ” of the merchants, and “Stark as agent had the control and administration of the plantations without charge for services.” Johnson & Goodrich refused to continuo this arrangement in 1872 and for that year they furnished supplies and made advances to the two plantations. The plantations were largely
At the October term 1873 the defendant and her sister filed their answers. To the suit on the partnership account they pleaded that they had entered into the partnership for the purpose and in the manner alleged, and in order that the provisions of their contract of partnership may be understood by the court they annex a copy. They also annex a statement of the operations of the partnership by which they admit of the amount advanced by the plaintiffs, $8909.63 was for stock aud implements and $4623.73 was for permanent improvements of the plantations, and after reciting their defence in detail claim a balance in their favour of $1690.34. Then follows this clause:—■
“Your respondents aver that T. O. Stark was their agent only for the purpose of managing their plantations in the year 1871 and that he had no authority to contract for them or bind them in any manner not contemplated by the written contract.”
The answer to the suit for supplies avers that the contract of. partnership gave the merchants the right to continue it and that they did elect to continue it through 1872, and therefore they have no right to sue for specific items of indebtedness but must bo relegated to then-action 'on the partnership and for its settlement.
The suits after two years and more delay wci;e fixed for trial in May 1875. Mrs. Stark and her husband went to the parish-seat “expecting the case to bo tried” as she says in her testimony. She staid there two days and then a compromise was made of the whole litigation, by which she aud her sister were to confess judgment for $20,000 in the partnership suit and for $10,000 in the supply suit, but these judgments were to bo cancelled if Mrs. Stark and her sister shall each execute her notes for $8,000 and secure them by mortgage within thirty days from that date, and in default of their doing so the judgments were to stand. The judgments were entered in court. Within thirty days Mrs. Stark executed three notes for $8,000 and gave the mortgage stipulated and so did her sister, and the judgments were cancelled.
This suit is upon the notes thus given and to enforce the mortgage. The sister’s property has already been sold to satisfy her debt. Senteli & Co. bought these notes immediately after viz in June 1875. Johnson & Goodrich had failed and owed Senteli & Co. a larger sum than these notes. They took them in payment.
There is no averment nor pretence of marital influence made in the defence to those suits. The sums for which judgment was demanded amounted to near fifty thousand dollars. We may assume they would have absorbed the property, blear a year passed after the institution of the suits before answers were filed. She had experienced and efficient lawyers and it is incredible that she should have omitted to tell them that her husband had coerced her, if it were a fact, and equally incredible that they should have omitted to plead it if she had told them. As time wore on the litigation and the impending ruin it threatened must have been the subject of anxious thought and when the time for trial arrived Mrs. Stark was present to support the averments of her answer by her own testimony.
A trial was averted by the compromise and the sum agreed to be paid by it was about ono-third of that demanded in the suits. Mrs. Stark had denied indebtedness for any sums beyond the scope of her agent’s powers, admitting that she was liable for whatever debt he had contracted within them. In the accounts of Johnson & Goodrich introduced by the defendant are items that on their faee.show or imply that they are for Mr. Stark personally—money paid on Ms sight drafts and the like. Excluding all of these and more beside there is left a sum far exceeding the amount of the notes. The two sums appearing on her own statement annexed to her answer in the partnership suit as exi>enditures during 1871 alone for permanent improvements and stock and implements amount to near the sum total of the compromise notes, to say nothing of what was similarly expended in 1872.
We have not entered into the consideration of the long list of authorities laid before us with laborious care by the defendant’s counsel touching the right of the defendant as a married woman to plead marital coercion, non-liability for husband’s debt, etc. because there is no need of it. Her right in defending suits is fully maintained and
And what is the result of it all ? She is the only witness in support of these defences and she makes no attempt to explain how or the manner in which the marital coercion was applied. ' No circumstances are given, no words that were said, no acts that were done—nothing but the repeated iteration of the assertion—“my husband influenced me,” and again that he and her sister influenced her.
During the pendency of the original suits for the large sums already-stated she had ample time to have formulated and presented the defences she now makes, and when the compromise of them was made she was assisted by counsel. One of them is a witness to the Act she signed. That a married woman can compromise a pending suit against her and legally bind herself has beeD decided in Barron v. Sollibellos, 26 Ann. 259, where the facts were very similar to those in the case at bar, and sne cannot be heard to set up the defence that the debt was her husband’s in a suit upon the compromise after she has failed to make it in the previous suit, or withdrawn it in consideration of the advantages she secured by the compromise. If a married woman under such circumstances can go behind her own judicial admissions and repudiate them she will have an immunity that the law has not conferred upon her. Thornhill v. Bank, 34 Ann. 1171; Chaffe v. Watts, not yet reported.
We think the defendant has no escape from the payment of the obligations and that the judgment below in her favour is error. Therefore
It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that the plaintiffs Geo. W. Sentell & Co. have and recover of the defendant Dora Stark eight thousand dollars with eight per cent, per annum interest thereon from the fifth day of May 1875, and five per centum upon this sum additional as attorney’s fees, and the costs of both courts, subject to a credit of three hundred and fifty-four 67-100 dollars on July 12, 1876. It is further adjudged and decreed that the mortgage claimed in the petition in this suit is recognized as resting upon the land and other property described therein to secure the payment of this judgment and the same is ordered to be enforced.
