Marshall v. Overbay

10 La. 161 | La. | 1836

Bullard, J.,

delivered the opinion of the court.

The opinion we have formed upon the merits of this case, according to the evidence in the record, makes it unnecessary for us to decide upon a bill 'of exceptions to which our attention was called in the argument, relating to the right of the defendant to amend after the trial had commenced.

The defendant, who is a married woman, is sued as endorser of a promissory note. She endorsed the note in question before her marriage, but afterwards, and before its maturity, it is alleged she waived the necessity of a demand, and agreed to consider herself equally bound as though a legal demand and protest had been made. At the time she gave this consent she was married; and there is no evidence in the record to show that her husband consented to this modification of her original engagement. The defendant, and her husband who was joined in the suit, for answer, put in the general denial; and being comdemned to pay the note by the District Court, appealed.

A married wo-“/oontractfn^a ?ey obligation ciitor, without husband, by '™™ns notice protest, as en-whenVhehadcn-heforemaiTiage6

The effect of the defendant’s waiver of demand and protest, would be to render positive and absolute her obligation to pay the amount of the note, which was at the time of the endorsement contingent and conditional. We cannot distinguish it from the contracting of a new engagement as surety of the drawer. The plaintiff relies wholly upon this new contract, not pretending that any demand was made of the drawer and notice given to the defendant. The only question is, whether she is bound.

The general rule is, that a married woman is incapable of contracting without the consent of her husband. That consent is presumed in some cases; for example, in commercial contracts, where he permits her to trade in her own name, for necessaries for herself and family when he does not himself provide them, and to all other contracts when he is himself a party to them. Louisiana Code, article 1779. The present case does not appear to come within these principles; and without showing the consent of the husband, we are of opinion the plaintiff cannot recover. Without proof of the husband’s authorization, either express, or as implied in the cases above mentioned, the plaintiff fails to prove any contract which can be enforced in a court of justice against a married woman.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and ours is in favor of the defendants, as in the case of a non-suit, with costs in both courts.