187 Mich. 612 | Mich. | 1915
Plaintiff sued defendant in assumpsit to recover the amount due on a $1,000 note, dated Feb
“We think there was nothing to go to the jury against defendant. It is the law of this State that a married woman can make no obligation except on account of her own property, and that any one seeking to hold her must make out an affirmative case.”
It was further said in the opinion :
“The signing of a note by a married woman creates no presumption of consideration, but it must be proved.”
This rule was approved in Fisk v. Mills, 104 Mich. 433 (62 N. W. 559), where Mr. Justice MONTGOMERY observed that:
“The fact appearing that defendant was a married woman, the burden rested upon the plaintiff of showing that the consideration of the note passed to her.”
These holdings are in harmony with all the former holdings of the court on the question, and they were followed by the later decisions up to the time the case of National Lumberman’s Bank v. Miller, 131 Mich. 564 (91 N. W. 1024, 100 Am. St. Rep. 623), was decided. The same question arose in that case and it was there said:
“Plaintiff made its prima facie case by introducing the note in evidence. Defendants thereupon moved the court to direct a verdict for the defendants on the ground that the plea and notice showed that the defendants were husband and wife, and the duty rested upon the plaintiff to prove such a consideration as would bind her. Upon its face the note was hers, and it imported a consideration paid to her. It was indorsed by her husband. There was no presumption against the legality of such a note. The burden rested upon the defendant to prove facts which would relieve her from liability.”
This language appears to reverse the former rule, which had been followed up to that time. While the
(a) A married woman’s contract, except with reference to her separate property, is void, and not voidable. This undoubtedly furnishes the reason for the rule which places the burden on one who seeks to bind her to show that the transaction is one that is within the scope of her powers to contract.
(b) Had it been the intention of the court in the Bank Case to reverse this well known and understood rule, some reference doubtless would have been made to it by the writer of the opinion, and the former cases referred to and discussed.
(c) Since the Bank Case was written, the old rule has been followed, and Fechheimer v. Pierce approved. In the late case of Detroit Lumber Co. v. Cleff, 164 Mich. 276 (128 N. W. 281), the plaintiff in the trial court recovered a judgment by direction of the court. The defendant introduced no testimony. This court reversed it, and held that the case made by the plaintiff did not warrant the direction of a verdict by the court in its favor, because it had failed to connect the consideration with the separate property of the defendant.
Our conclusion is that, in so far as the case of Bank v. Miller is inconsistent with the rule laid down in Fechheimer v. Pierce, it must be overruled.
The judgment of the trial court will be affirmed.