39 S.C. 525 | S.C. | 1893
the opinion of the court was delivered by
This was an action to recover a specific sum of money, which the defendant had promised to pay to the plaintiff by her promissory note. The first allegation in the complaint, and the only one which it is deemed necessary to notice, is in the following words: “That the defendant is indebted to plaintiff in the sum of six hundred and sixty-five dollars and ninety-two cents, with interest from the 27th day of January, A. D. 1888, at the rate of seven per cent, per annum, which said sum of money the defendant, by her promissory note, bearing date the 27th day of January, A. D. 1888, undertook and promised to pay to plaintiff, a copy of which note is as follows, to wit:
*531 “665.92. January 27, 1888.
“One day after date, I promise to pay to the order of J. N. Martin six hundred and sixty-five 92-100, for value received, with interest from date. (Signed) Texanna Súber.”
The defendant answered, saying: “1. That she emphatically denies that she is, or was, indebted to the plaintiff in the sum of six hundred and sixty-five dollars and ninety-two cents, with interest from the 27th day of January, 1888, as stated in the complaint, or in any sum whatever. 2. That she admits that she did sign a note similar to the one mentioned in the complaint, and that she supposes that said note is correctly exhibited in the complaint, but she denies that said note represents any debt of hers, or that it is in any sense binding upon her. 3. That she alleges that the plaintiff herein had a claim or account against Mr. J. Benson Súber, of the county and State aforesaid, and urged her to give her note for, or assume the payment of, the said claim or account, at the same time, and as an inducement to her to accede to his request, promising her that she should pay the same when it suited her convenience, and at no other time, and distinctly promising her that she should not be pressed in the payment thereof; that under these promises she signed a note for said indebtedness of the said J. Benson Súber, the same being the note herein sued on; that if said note is to be held binding upon her, she demands that it be reformed by this court so as to conform to the real contract by her, if any legal contract she made with the plaintiff.” In the fourth paragraph of the answer the defendant alleges: “That at the time of the signing of said note, and at the present time, she was, and is, a married woman,” and had no legal capacity to make any contract such as that evidenced by said note. In the fifth paragraph she alleges that she has been damaged to an amount stated, by the conduct of the plaintiff in inveighing her into the signing of the said note, and by failing to incorporate therein the terms and conditions upon which she so signed, and by his failing to observe said terms, for which amount she demands judgment against the plaintiff.
The plaintiff replied, denying the material allegations contained in defendant’s answer, upon which she rests her defence.
It is urged in the argument on behalf of the appellant, that the execution of the note was not, in fact, admitted by the answer; and to meet this view, we have been particular to set out the pleadings more fully than otherwise would have been deemed necessary. It seems to us impossible to read the answer without perceiving that the execution of the note was distinctly admitted more than once. In the second paragraph of the answer the language is: “That she admits that she did sign a note similar to the one mentioned iu the complaint, and that she supposes that said note is correctly exhibited in the complaint.” In the third paragraph the language is: “That under these promises she signed a note for said indebtedness of the said J. Benson Súber, the same being the note herein sued on" (italics ours). And in the fourth paragraph of the auswer defendant says: “That at the time of the signing of said note,” referring plainly to the note set out iu the complaint, she was a married woman, &e. In the face of these repeated admissions contained iu the answer, we are at a loss to conceive how it is possible to deny that the execution of the note was ad
It will be observed that the act does not cover all instruments in writing, but only “conveyances, mortgages, and like formal instruments of writing” affecting the separate estate of the married woman. Hence, unless the instrument in writing in a given case falls within one or the other of the classes mentioned, the act will not apply. So that the first inquiry here is whether a mere promissory note falls within either of the classes mentioned. We agree with the Circuit Judge that it does not, for the reason that it is not a “like formal instrument
The judgment of this court is, that the judgment of the Circuit Court be affirmed.