105 Ky. 414 | Ky. Ct. App. | 1899
Lead Opinion
delivered the opinion of the court.
This is an appeal by appellants from a judgment against them upon a promissory .note executed to appellees, Turnelly & Gill, to secure them against possible loss growing out of advances to Bradford & Turner for the purchase of loose tobacco. Previous to the execution of the note, L. A. Bradford and Q. M. Turner, constituting the firm of Bradford & Turner, were .engaged in the. business of buying loose tobacco and shipping it to Turnelly & Gill, and they had engaged to do so. during the tobacco season which began in the fall of 1893. Turnelly & Gill were warehouse-men in Clarksville, Tenn., and made advances at various times to Bradford & Turner, the business being carried on in the name of L. A. Bradford. They were- to charge interest on their advances, sell the tobacco shipped them, and credit the proceeds on the account. Fearing that, at the price tobacco was bringing, there would be a loss, they sought to have Bradford & Turner. protect them. So the note sued on was given on March 12, 1891; and Bradford & Turner, together with appellaiA B. A. Turner, also executed a writing pledging their individual crops of tobacco for the payment of such loss as might result. There was a loss of $303.18, for which the court below gave judgment against appellants on the note.
Q. M. Turner denies that he was a partner of Bradford in this transaction, but we think the record shows that he was a partner. It is also claimed by the appellants that, after
Appellant L. A. Turner denies liability for certain advances made before the execution of the note, on the ground that they were made to Bradford individually, and' not on account of the firm of Bradford & Turner. The advances were made in the purchase of tobacco during the tobacco season beginning in the fall of 1893. The writing which Turnelly & Gill delivered when the note was given shows the note was to protect them for .the advances made during this season to Bradford & Turner.
It is also contended in behalf of appellant L. A. Turner that the note was intended only to secure advances thereafter made. But at the time of its execution advances had been made, and tobacco had been bought with the money thus advanced. It was contemplated that Bradford & Turner would ship such tobacco as had been bought, and buy other tobacco and ship it; and the plain meaning of the writings, taken as a whole, was that they would secure Turnelly & Gill against any loss on that season’s business. If L. A. Turner became a partner of Bradford after the execution of the note, that would not affect her liability in any way in this action.
It is also contended in behalf of appellant L. A. Turner that the judgment as to her should be reversed because it appears from the record that at the time the note was given she was a married woman, the wife of Q. M. Turner. The note sued on was given before the passage of the act approved March 15, 1894, removing to some extent the disabilities of married women; but the suit was filed after that
The question therefore arises, can a .married woman, who is authorized by the statute to sue and be sued as a single woman, deliberately refuse to plead her coverture- when sued upon an obligation given before that statute was passed, and, when she has been beaten on the issues she saw fit to- raise, obtain a reversal in this court by reason of her coverture, when she did not present that question in anj^ way to the court below?
Section 114 of the Code of Practice provides that parties must before trial form a material issue concerning each cause of controversy. Section 886 also provides that judgment shall be given for the party whom the pleadings entitle thereto, though there may have been a verdict against him. Pursuant to these sections, it has been held that the defendant is bound by his pleading, and the court can not
Dissenting Opinion
dissent. JUDGE PAYNTER delivered the eoixowing dissenting opinion.
This action is based on the following note: “?1,000. Eight months after date, we, or any of us, promise to pay Turnelly & Gill one thousand dollars. Mrs. L. A. Turner signs this note as a feme sole, and binds her estate for its payment. This note is not transferable. This March 12, 189á. L. A. Turner, L. A. Bradford.” As part of the transaction of the execution of the foregoing note, Turnelly & Gill executed a writing which is-as follows, to wit: “U. A. Bradford & Q. M. Turner and wife have this day executed to us a note for one thousand dollars, due in eight months, and nontransferable. This note is made to secure Turnelly & Gill against possible loss growing out of advances they made during this year to Bradford & Turner for the purchase of loose tobacco, and, if no such losses are made, then this said notéis to be surrendered to the parties making it; and, if such losses should be less than one thousand dollars, then only the loss will be collected by us on the
• Until the act which authorized courts of equity, on the petition of husband and wife, or on her petition, the husband being made a defendant, to empower a married woman to contract and obligate herself as a feme sole she could not enter into any contract by which she could bind herself personally, — even when she had a separate estate she could not do so; neither under the statute which allowed her to execute obligations for necessaries for herself, could she bind herself personally.
This court said she could not appear in an action and release errors, and that there was no case on record where a personal judgment had been rendered against a married woman on a contract which she had made. Breckinridge v. Coleman, 7 B. Mon., 334. Then, unless a married woman was empowered to do business as a feme sole, as authorized by the statute, no personal judgment on her contracts could be rendered against her. Agnew v. Williams, 1 Bush, 4; Sweeney v. Smith, 15 B. Mon., 328. This court, in Parsons v. Spencer, 83 Ky., 305, and Spencer v. Parsons, 89 Ky., 577, [25 Am. St. R., 555; 13 S. W., 72], recognized the correctness of the doctrine as stated, and expressly held that in an action to enforce such a personal judgment, though- it did not so appear in the record of the case in which it was rendered, it could be shown, to defeat its enforcement, that it had been rendered on an obligation executed by a married woman during coverture which did not create a personal liability.
In an action of A. against B. & O. on a note executed under the old law, if it is averred that O. was the wife of B. when the note was executed, a demurrer should be sustained to the petition, because instead of stating a cause of ae
The court is inaccurate in saying, “The pleadings do not show that she [meaning Mrs. L. A. Turner] was a married woman when the note was given.” In the amended petition, after stating that Q. M. Turner was interested with L. A. Bradford as a partner in the business that was being carried on in Bradford’s name, and that they demanded that Bradford & Turner secure them in the payment of the sums advanced, it is averred “that both Bradford and Turner at that time gave plaintiffs the pledge of their individual crops of tobacco, and that defendant Mrs. L. A. Turner, in order to make the pledge of her husband binding, joined in said pledge to the plaintiffs. And as this was not sufficient to satisfy the plaintiffs, or to secure them in their debt, the defendants Bradford and L. A. Turner made, executed, and delivered the promissory note sued on, for the purpose of securing plaintiffs’ debt, or any debt that might be due them for advances made Bradford & Turner.” The lan-' guage shows that she was the wife of Q. M. Turner when she executed the note, as she then signed a paper to make
• The note in suit was executed by Mrs. L. A. Turner to guarantee the payment of a debt of her husband. Even if it had appeared that the note had been executed since the act of March 15, 189^, became a law, there could not be a recovery against her (section 2127, Ky. Stat.), unless her estate had been set apart, by deed or mortgage, or other conveyance, for that purpose. The present statute does not affect the question of Mrs. L. A. Turner’s liability on the note, or make valid the judgment rendered on it; nor would the note be enforceable if it had been executed under the same condition under the present statute. Therefore it is certainly erroneous to conclude that she is not entitled to relief because the disability of coverture is removed as to some matters, though not as to a contract like the one under consideration. Under the statute in force at the time the note was executed, the courts would have refused to enforce a judgment on it, although the