Scudder v. Gori

18 Abb. Pr. 223 | The Superior Court of New York City | 1864

By the Court*—McCunn, J.

If the defendant was a married woman, and, by reason thereof, was not legally bound to pay the note in suit, the answer, assuming its statement to be true, was not insufficient. The exception to the ruling upon the objection that the answer was insufficient, as containing no defence, was therefore not well taken.

The amendment of pleadings during the trial is a matter of discretion with the court. The plaintiff did not allege surprise, and, indeed, could not truthfully have done so, as he must be presumed to have taken the amended matter into consideration in preparing for the trial.

The error of the counsel for the plaintiff was, in assuming at the trial that a promissory note made by a married woman imports a consideration, and is negotiable like such evidences of debt when made by single females.

At common law a married woman had no legal existence. The Legislature have thought proper to create some specific status for her, but she may not move one step further, or save as the law specifically directs or permits. The Legislature have removed certain disabilities pertaining to a married woman, but it has not as yet in terms permitted her to exchange notes as a matter of friendly accommodation. The law, it is true, permits her to engage in trade, and no doubt in pursuit of such business, notes and other obligations which were, and are alleged to have been, given in the course of business, can be recovered on against her, in like manner as if she were a feme sole. So, again, if tending to benefit her separate estate, her obligation be given, intending to charge that estate, she could be held liable; the law-makers seem to have wished to protect and benefit her, and to leave the unfortunate dealer with her, at his peril, to look to it that in all her transactions, presuming upon her legal entity, she was within the scope and prescribed limits which the law has given.

If these views are correct, the complaint might have been dismissed, upon the plaintiff’s resting his case. The complaint did not state facts sufficient to constitute a cause of action against the defendant, assuming it to be true that she was at the time of making and delivering the note a married woman.

There was some proof tending to establish that the defendant was a married woman, whether or not it was sufficient in law, or would have been satisfactory to the jury in an important inquiry, in view of testimony which was offered which might have established that she was a single woman. The plaintiff offered to prove that the defendant had sued and been sued in her own name; and that there were numerous judgments against her. This evidence was excluded, and the plaintiff excepted.

We think that this was erroneous ; the important issue to be determined, was whether the defendant in law or in fact was a 'feme sole as to her liability upon the note sued upon; the evidence of marriage, in fact, was not proven in such a manner as would be required in an action for a divorce a vinculo, and the offer of the plaintiff might have produced clear and positive testimony contradictory of the case as made by the defendant.

The learned judge was therefore in error when he withdrew the questions of fact from the jury, and directed the complaint to be dismissed.

The judgment must be reversed, and a new trial ordered, with costs to abide the event.

Justices Moncrief and Garvin concurring.

present, Moncries, Garvin, and McCunn, JJ.