63 Mo. 486 | Mo. | 1876
delivered the opinion of the court.
This was a suit brought in the circuit court of Phelps county, founded upon a contract entered into by defendant, Emma Maxwell, with plaintiff, and a bond executed by defendants, Emma
It is further alleged that plaintiff, in the months of October, Novembér and December, furnished sewing machines to defendant, Emma Maxwell, and that she executed three promissory notes to plaintiff in the aggregate sum of $364.43, which she had failed to pay.
Separate answers were'filed by Emma Maxwell and her husband, Thomas Maxwell, in which the execution of the agreement and bond were admitted, and set up the coverture of Mrs. Maxwell, at the time of their execution, as a bar; and further, that the notes mentioned in the petition were taken by plaintiff in disr charge of the bond.
Defendant Bradish also filed a separate answer, setting up substantially the same defense.
Plaintiff filed a replication to both answers, alleging that, at the time of the execution of the contract and bond, Mrs. Maxwell was conducting business as a sole trader upon her own account, and that her husband had no control over it or connection therewith.
The court, against the objection of plaintiff, gave the following instruction for defendants :
“ The court declares the law to be, that upon the pleadings defendants are entitled to a judgment for costs, in that it is admitted that defendant, Emma Maxwell, is a married woman ; that a judgment at law cannot be rendered against the said Emma Maxwell, it being admitted that she is a married woman; that the bond read in evidence is a nullity, in that it is signed by Emma Maxwell, principal.”
The proposition stated by the court, that Emma Maxwell having executed the bond while she was a femme covert, it was not enforcible at law against her, was correct. As to her, it was unquestionably void at law, and if the instruction had gone no farther than this, the action of the court below would not be disturbed. The instruction, however, further declares that the sureties are also discharged by reason of the discharge of Mrs. Maxwell. This by no means follows. While the general rule is, that the extent of the liability of the surety is measured by that of the principal, it is not of universal application, and exceptions to it may arise when the matter of defense, pleaded by the principal, is wholly of a personal character, as coverture or infancy.
The coverture of the principal at the time a note or bond is given, may be interposed as a bar to a recovery against her, but it alone cannot effect the discharge of the surety; the surety, in such case, standing in a certain sense as a principal promissor.
In the case of Smiley vs. Head (2 Rich. [S. C.] 590), it is decided that, while a note executed by a femme covert is void at law as to her, the sureties thereto are bound, and it is enforcible against them. It has also been decided, in a large number of the States, that it is no defense on the part of a surety to a note or bond, that the principal at the time of its execution was
The plaintiff presented several instructions, which were refused, and which asked the court, substantially, to declare that, although a judgment at law could not be rendered against the defendant, Emma Maxwell, because she was a femme covert at the time of signing the bond ; yet, if defendant Bradish signed the same as her surety, the plaintiff was entitled to recover as against him. The instructions, asserting the above principle, should have been given, and the court in refusing them committed error, justifying a reversal of the judgment.
Judgment reversed and cause remanded,