181 Pa. 103 | Pa. | 1897
Opinion by
It is beyond all question that the consideration for which the first of the large notes was given, the one of May 24, 1893, for $2,600, was the several notes of the appellant’s husband given at different dates prior to that time. Mrs. Tobler indorsed two of them, but on the others her name did not appear. These four due bills and two notes were aggregated into one new note for $2,600 at four months, dated May 24, 1893. When that fell due two new notes were given, one for $2,348 and the other for $252, dated September 27, 1893, and at their maturity, on January 27, 1894, the note in suit was given for $2,652, the aggregate of the principal and interest of the last two preceding notes. All of these last mentioned notes were signed by George Tobler and Cornelia V. Tobler. No new or fresh consideration of any kind, other than the preceding notes, appeared in the case in any way. On the face of the papers, therefore, the note in suit was signed by Mrs. Tobler as surety for her husband. She was not the maker of any of the original notes which were signed by her husband alone, and she was indorser only, on the
In Sellers v. Heinbaugh, decided in 1887, a married woman was bound with sureties for the payment of money borrowed and used for the repair and improvement of her separate real estate. The sureties paid the bond and brought an action against their principal to recover the money paid by them as her sureties, and we held there could be no recovery. All of those decisions proceeded upon the idea that the married woman could not make a valid obligation for any of the several purposes mentioned, and therefore she was not liable. It was the want of the contractual capacity to make such an instrument that relieved her of any obligation. Since the acts of 1887 and 1893 her contractual capacity has been very greatly enlarged, and we have cheerfully held her' bound by her contracts to the full extent of her liability under those acts. But the liability set up in the present case is still subject to statutory prohibition. The Act of June 8,1893, sec. 2 (Purd. Dig. 1299, pi. 24), P. L.
Our Brother Dean, delivering the opinion said, speaking of the act of 1893, “ This act declared a married woman might bind herself by many contracts which theretofore she could not legally make, yet it expressly continued her disability to become an accommodation indorser, guarantor or surety for another. . . . Formeriy her capacity to contract was exceptional and her disability general. Now her disability is exceptional and her capacity general. . . . Her liability is not determined alone by the form of the obligation; if the object was to evade the disability created by the statute, the fact, not the form, will determine her liability. ... The whole transaction was a transparent device adopted by the plaintiff and the husband to evade an express statutory enactment; to create by form a liability where by law none in fact existed.” In the present case there was no device of any kind by which to avoid the effect of the statute.. The liability sought to be enforced is a direct contract of suretyship, and upon such a contract there is no liability, unless we choose to set aside the positive terms of an express statute, which, as a matter of course, we will not do. The case of the plaintiff is not helped in the least degree by the effort to show that the
Judgment reversed.