Moeckel v. Heim

46 Mo. App. 340 | Mo. Ct. App. | 1891

Lead Opinion

Ellison, J.

This action was instituted by filing a bill in equity which in effect charges defendant with the conversion of two promissory notes, the separate property of plaintiff, who is a married woman. Plaintiff had a decree in the circuit court giving her judgment for the amount of the notes subject to be satisfied by a return of the notes unpaid in sixty days, otherwise the judgment should be absolute and execution would issue. It appears from the evidence that plaintiff owned the notes, one for the sum of $375, dated April 2, 1887, and the other for the sum of $600, dated April 12, 1887, both of which were her sole and separate property; that'she indorsed them in blank soon after she became the owner, and on or about the ninth day of July, 1887, delivered them to her husband, Bruno Moeckel. The plaintiff’s husband, while in the employment of the defendants, became indebted to them in the neighborhood of $1,200, for the payment of which defendants were pressing him, and, in order to get further time and avoid litigation, he, together with the plaintiff, on the fourteenth day of June, 1887, executed and delivered a certain promissory note for the sum of $1,100 to the Ferd-Heim Brewing Company, and, to secure the payment of said note, the husband delivered as collateral security the two notes which had been indorsed in blank by plaintiff and delivered to him. It further appears from the evidence that the defendants had no notice whatever of the manner in which the husband got possession of the notes, or the purpose for which plaintiff delivered them to him. The foregoing states the facts in a short way, but as broadly for the defendants as the case will allow ; and the question presented is, was there such a reduction to possession by the husband as gave him the power of disposal of the notes ? That portion of the statute relating to the matter is as follows: “ This section shall not affect the title of any husband to any personal property reduced to his possession with the express assent of Ms wife: Provided,, that said personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care and protection thereof, but the same shall remain her separate property, unless by the terms of said assent, in writing, full authoritity shall have been given by the wife to the husband to sell, incumber or otherwise dispose of the same for his own use and benefit.” R. S. 1889, sec. 6819.

Defendants’ contention is that the name written across the back of the note was an indorsement thereof as understood in'commercial law. That in writing her name on the back of the notes she has said, first, that, “I hereby assign these notes to the bearer;” second, that “I hereby undertake that if these notes be dishonored I, on receiving due notice thereof, will indemnify the bearer.” That, therefore, plaintiff did, in writing, give express assent and full authority to her husband to dispose of the notes for his own use and benefit. The result of this contention is, that the writing of her name across the back of a note by a married woman operates as a contract of indorsement with its implications and intendments. We are not of this opinion. A married woman is not sui juris. She cannot make a contract of indorsement. Bachman v. Lewis, 27 Mo. App. 81. If she had written on the note the words of defendants’ second contention, they could not have been enforced against her. It is quite apparent that, if she could not make a contract of indorsement in express terms, she could not by ■ any implication. But for the law peculiar to the indorsement of commercial paper the mere writing of one’s name on the back of a note would amount to nothing. By force of the law, the writing on the back of a note implies a certain contract, but it never implies it to one not capacitated to make it. It does not imply authority in the holder to fill out a contract over the signature which the signer could' not make. It is not pretended that the object plaintiff had in writing her name on the notes was for the specific purpose of enabling her husband to deliver them for his own use and benefit to the defendants. Nor will we say that if such had been her intention that it would have been sufficient. The contention-is, or the result of the contention is, that such is the legal effect of the act. By reference to the authorities cited in plaintiff’s brief it will be seen that the statute here considered has been construed, in the cases arising under it, in keeping with its express terms. The judgment is affirmed.

All concur.

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Rehearing

ON BEHEABING.

Ellison, J.

But if we are wrong in the foregoing there is another view which will still determine the point against defendant. In order that the property may become the husband’s, the statute (quoted above) not only requires express assent in writing for the husband to sell, incumber or otherwise dispose of the wife’s property, but the assent must also be that he may so dispose of it for his own use and benefit. If the terms of the assent are. only that he may dispose of it he would be merely her agent. But when he attempts to use it for himself her express assent must be given that h.e may so 'do. The most that we could allow for her mere signature on the back of these notes is that it was an assent that he might collect the money due thereon for her. But whether even this would be express assent we do not decide. The Ohio statute is similar to ours except the assent is not required to be “ express” or in writing; and in Franc v. Nidlinger, 41 Ohio St. 298, it was held that the indorsement and delivery of a draft to the husband did not constitute the necessary assent. “It was a consent that he might collect the money, but not that he might do so for his own use and benefit.” Farmer v. Farmer, 39 N. J. Eq. 211.

We come now to another point made by defendant which has given us some difficulty. Plaintiff executed to defendants a note with her husband and as his surety. And from this defendants contend that as they have a right in equity to charge plaintiff5 s separate estate with this note, they should not now be made (at the hand of a court of equity) to pay the notes which plaintiff charges they have converted, since they being her own estate are liable in equity to be charged with her note executed as aforesaid. But it is insisted that the wife cannot charge her separate estate by executing a note wherein she is a surety, unless it appears from the terms of the note that she intends so to do. This is not the law in this state. By executing the note, the presumption of law is that she intended to charge her separate estate unless the contrary intention appears from the paper. Coates v. Robinson, 10 Mo. 757; Whitesides v. Cannon, 23 Mo. 457, 472; Miller v. Brown, 47 Mo. 504, 513 ; Kimm v. Weippert, 46 Mo. 532, 545. And, though she sign with her husband as his surety, the same rule applies. 2 Story Eq., sec. 1401; Metropolitan Bank v. Taylor, 62 Mo. 338; Lincoln v. Rowe, 51 Mo. 571. And any intention not to charge her separate property in such case must, as in other cases, appear from the note itself, else it will be of no avail. Metropolitan Bank v. Taylor, supra. So, therefore, the note here referred to is properly chargeable on her sepurate estate unless its execution was procured by fraud. Our opinion, therefore, is that such note may be interposed by defendants in defense if it be set up in a proper answer. We can see no good or sufficient reason why this should not be permitted. Plaintiff is asking a court of equity to decree to her the notes or their value, they being her separate estate. Defendants have a claim which, in equity, is chargeable upon these notes, and they ought to be permitted to assert it in a court of equity.

The judgment will be reversed and the cause remanded and tried as herein indicated.

All concur.