Wiltbank v. Tobler

Opinion by Mb,. Justice Gbeen, 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 [107] two upon which her name did appear. The present action, it must be borne in mind, is not an action to recover for money loaned. It is an action founded exclusively upon the note of' January 27, 1894. It is true the amended statement of the plaintiff’s cause of action contains an averment that the note was given to secure a loan of $2,652, which was made by Potts to Mrs. Tobler for the payment of interest, taxes and repairs of her separate real estate, but the action is nevertheless upon the note as the note of the wife. Under the act of 1848 it was repeatedly held that a married woman could not give a valid obligation for money loaned, although the loan was made for the express purpose of enabling her to pay for land, or for the removal of liens, or the payment of- repairs or taxes, or for improvement of her separate real estate: Glyde v. Keister, 32 Pa. 85; Brunner’s Appeal, 47 Pa. 67; Keiper v. Helfricker, 42 Pa. 325; Schlosser’s Appeal, 58 Pa. 493; Sellers v. Heinbaugh, 117 Pa. 218. In Glyde v. Keister the bond was given for necessaries, and we held it was void although she would be liable for the debt if contracted directly by her. In Brunner’s Appeal the bond was given for the improvement of her real estate; in Keiper v. Helfricker, for money borrowed for the purchase of land, and in Schlosser’s Appeal, for the extinguishment of a lien, but all were held void., because as the law then was, a married woman could not give a valid bond. 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. [108] 344, which is the source of her present contracting power, also contains a peremptory prohibition in the following words: “ But she may not become accommodation indorser, maker, guarantor or surety for another.” This species of liability she is still unable to incur, and hence her inability to make such contracts must be adjudged upon the same principles and authorities that were applicable prior to the new legislation. Governed by those principles, and acting upon those authorities, there is no room for any argument or discussion upon the question of her liability. As there was not then, and is not now, any contracting capacity upon which such a liability can be founded, it does not exist. In Patrick v. Smith, 165 Pa. 526, this view was enforced where a very ingenious method of evading the act was devised. But we looked beyond the method, and refused to enforce the liability of indorsement by the wife of a draft in favor of her husband, although she drew the proceeds of the draft from the bank which discounted it by her personal check in favor of her husband, and subsequently gave her own note for the unpaid part of the draft, and again drew the proceeds by her personal check in favor of her husband. 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 [109] debt was contracted for the benefit of the wife’s separate estate* Some of the cases already cited were far more meritorious than this in this respect. Nevertheless we held uniformly that there could be no recovery, for the fundamental reason that there was no capacity to make the particular instrument which was sought to be enforced, although there was capacity to incur the kind of indebtedness for which the instrument was given. As this is a proceeding to enforce the payment of an instrument which is in itself a contract of suretyship only, we are obliged to hold that there can be no recovery. The case of Spotts’s Est., 156 Pa. 281, has no application. The recovery there was based upon a direct loan of money to the wife for which, of course, she was liable. The assignments of error are all sustained. Judgment reversed.