41 S.C. 327 | S.C. | 1894
Lead Opinion
The opinion of the court was delivered by
This action was based on an account for goods alleged to have been sold and delivered by the plaintiffs to the defendants as partners in trade, at divers times, from the 16th of February, 1892, to the 11th of May, 1892, both inclusive. The defendant, McKerall, made default, and judgment was rendered against him for the amount of the account.' But the other defendant, Mrs. Cheatham, answered, alleging that she was a married woman, both at the time the alleged partnership between herself and codefendant, McKerall, purports to have been entered into, and at the time the said account was contracted; that no part of the articles mentioned in the account concerned or affected her separate estate, as was well known to the plaintiffs at the time; and setting up the legal defence that as a married woman she had no power to enter into the alleged contract of partnership, and was, therefore, not bound by any contract of such alleged partnership.
The case was heard by the Circuit Judge, without a jury, by consent, and the facts being admitted — that the alleged partnership between the defendants was entered into some time in the year 1888 or 1889, and continued without renewal or alteration until July, 1892, during all of which time Mrs. Cheatham was a married woman — the only question presented, as to whether she was liable, depended upon the question whether she had the power to enter into such contract of partnership. The Circuit Judge held that she had no such power, and, therefore, he rendered judgment dismissing the complaint as to Mrs. Cheat-ham. From this judgment plaintiffs appeal upon the following
So that the inquiry here is still further narrowed down to the question, whether a contract of partnership falls within any one of the classes specifically designated in the first proviso to the act. That it does, is abundantly apparent from the very nature and effect of a contract of partnership. Passing by the fact, that, in the eye of the law, a partnership and one of the individuals of which it is composed are two distinct and separate persons, and that if a married woman can euter into a contract of partnership, she necessarily becomes liable to pay the debt of another, the power to do which is expressly denied by the act, we think the following cases, cited by counsel for respondent, conclusively show that from the very nature of the contract of partnership and the legal results flowing from such contract, it is just such a contract as a married woman is denied the power to make. In the case of Hawes v. Dunton & White, 1 Bail., 146, it was held that a mercantile copartnership was liable on a promissory note given for the debt of a third person, and signed in the partnership name by one of the members of the firm without the knowledge of the other member. The same doctrine was recognized in the subsequent cases of Flemming, Ross & Co. v. Prescott, Bishop & Gray, 3 Rich., 307; Steel v. Jennings & Beatty, Cheves, 183, and Duncan v. Clark & Co., 2 Rich., 587. If, therefore, a married woman has the power to enter into a contract of partnership, and a bill of exchange is drawn by her husband on the partnership to pay a debt of his
We think it clear, therefore, that there was no error on the part of the Circuit Judge in holding, “that under the proviso to the act of December 23d, 1891, a married woman cannot make a contract of partnership, for she would thereby become liable to pay the debt, or answer for the default or liability of some other person, which, under the provisions of said act, she has no power to do.”
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
I dissent. I cannot think that this married woman was either “an accommodation endorser,” “guarantor,” or “surety,” or that she engaged to pay the debt or to answer for the default or liability of another person; and, therefore, under the act of 1891, she had the power to make the contract she did, and she should be held bound thereby.
Judgment affirmed.