Walker v. Arkansas Nat. Bank of Hot Springs

256 F. 1 | 8th Cir. | 1919

TRIEBER, District Judge

(after stating the facts as above). [1, 2 ] As the cause of action is based on a promissory note, executed and payable in the state of Arkansas, the laws of that state control. What the law of that state was prior to the enactment of Act of March 19, 1915 (Acts 1915, p. 684), and what it is since the enactment of that act, is stated in the late decision of the Supreme Court of that state in Holland v. Bond, 125 Ark. 526, 189 S. W. 165, as follows:

“Prior to the passage of this act a married woman would not bo liable as surety on a promissory note for her husband because contracts could only be made by a married woman in rolerence to her separate property or business. [Citing authorities.] But the act of 1915, just referred to, has removed that restriction, and in the broadest terms enables a married woman to sue and be sued, to contract and be contracted with, and in law and equity to enjoy all rights and he subjected to all the laws of this state as though she were a feme sole. * * * Tliis construction also results from the reasoning of the court in Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832 [187 S. W. 460, L. R. A. 1917B, 774, Ann. Cas. 19180, 772], where we held that the statute meant to give tlio wife the right to maintain an action against her husband either upon contract or for tort.”

Applying this rule to the instant case, the note sued on having been executed by the defendant after the act of 1915 had gone into effect, she is prima facie liable.

[3-5] But it is urged that, as this note is but a renewal of former notes, executed while, under the laws of the state of Arkansas, a married woman could not he held liable on a contract of suretyship on a promissory note, she is not liable on a renewal note executed after her disabilities had been removed, as the validity of the note must he determined by the law in force at the time the original contract was made.

An examination of the authorities relied on on behalf of the plaintiff in error fails to sustain this contention. What they hold is the well-established rule that, a contract absolutely void for illegality, either prohibited by statute, or malum in se, or being against public policy, will not he validated by a renewal note. But there never was a statute of the state prohibiting a married woman to become a surety, nor is such an act malum in se or against public policy, and therefore her contract is not absolutely void, but merely voidable, although courts frequently use the word “void” in speaking of such a contract when meaning “voidable.” Ramsey v. Crevlin, 254 Fed. 813, — C. C. A. —, decided by this court December 4, 1918, and authorities there cited.

It is the settled law of Arkansas that a married woman may mortgage her separate estate, as surety for her husband, without any consideration passing to her. The consideration to her hush/and will support her mortgage. Collins v. Wassell, 34 Ark. 17; Scott v. Ward, 35 Ark. 480; Petty v. Grisard, 45 Ark. 117; Goldsmith v. Lewine, 70 Ark. 516, 69 S. W. 308; Johnson v. Graham Bros., 98 Ark. 274, 135 S. W. 853; Harper v. McGoogan, 107 Ark. 10, 154 S. W. 187.

In Vance v. Wells, 8 Ala. 399, it was held that—

“A note executed by a married woman as surety for her husband creates a moral obligation, which will support an action at law on her promise to pay after discoverture.”

To the same effect are Spitz v. Fourth National Bank, 8 Lea. (Tenn.) 641; Bank of Hanover v. Bridges, 98 N. C. 67, 3 S. E. 826, 2 Am. St. Rep. 317.

In Viser v. Bertrand, 14 Ark. 267, 273, Chief Justice Watkins speaking for the court said:

“I am clearly of opinion that, if the jury believed the facts which I suppose the evidence conduced to prove, * * * the plaintiff below was entitled to recover upon the express promise of the defendant after she became discovert, without any new or further consideration for the promise being made to appear.”

Mr. Justice Walker in a concurring opinion said (page 280):

“In the case now under consideration, although no legal obligation existed under which the defendant could have been compelled to pay for the professional services, still such services were a legal consideration which, but for the rule of law that makes void the contract of a feme covert, a recovery might have been had upon an implied assumpsit, and consequently furnished a sufficient consideration to uphold an express promise made after the divorce to pay for them.”

In Woodruff v. Scruggs, 27 Ark. 26, 11 Am. Rep. 777, the question before the court was whether a note which under the statutes, in force at the time of its execution, was void for usury, was enforceable after the repeal of that statute, and it was held that it was. This was reaffirmed in Birnie v. Main, 29 Ark. 591, 596; Nicholls v. Gee, 30 Ark. 135, 141. To the same effect is Ewell v. Daggs, 108 U. S. 143, 150, 2 Sup. Ct. 408, 27 L. Ed. 682.

In Chollar v. Temple, 39 Ark. 238, 243, it was held that although no judgment could be rendered against a married woman, if she had appeared and set up her coverture, a judgment by default against her, although erroneous, is neither void nor erroneous, but may be enforced against her separate estate by execution, as if she were a feme sole.

[6] The next contention is that the renewal of the former notes and consequent extension of time is not a sufficient consideration for the execution of the note sued on, and as she was not liable, by reason of her coverture, on the notes executed prior to 1915, this note is without consideration. But the law of the state, as settled by the decisions of its highest court, is that—

“One wbo gives á note in renewal of another note, with knowledge at the time of a partial failure of the consideration for the original note, is estopped from setting up the defense of failure of consideration, in an action on the renewal note.” Stewart v. Simon, 111 Ark. 358, 163 S. W. 1135, Ann. Cas. 1916A, 825, where the authorities are fully considered.

This case has been reaffirmed in Haglin v. Friedman, 118 Ark. 465, 177 S. W. 429. Other cases decided by the Supreme Court of that state, to the same effect, are Tabor v. Merchants' National Bank, 48 Ark. 454, 3 S. W. 805, 3 Am. St. Rep. 241; Hamiter v. Brown, 88 Ark. 97, 113 S. W. 1014; White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208.

[7, 8] 'Infants are not liable on contracts not for necessaries, but it has been uniformly held that, If, after becoming of age, they execute a new contract in writing, they will be liable on it. Watkins v. Wassell, 15 Ark. 73; Barnaby v. Barnaby, 1 Pick (Mass.) 221; American Mortgage Co. v. Wright, 101 Ala. 658, 14 South. 399; Ward v. Anderson, 111 N. C. 115, 15 S. E. 933; Houlton v. Manteuffel, 51 Minn. 185, 53 N. W. 541. An infant may be estopped by acquiescence after he becomes of age. Brazce v. Schofield, 124 U. S. 495, 504, 8 Sup. Ct. 604, 31 L. Ed. 484.

The judgment is right, and is affirmed.