Harper v. O'Neil

Opinion by Mr. Justice Fell, The transaction between the parties comes so clearly within the inhibition of section 2 of the Act of June 8,1893, P. L. 344, which prohibits a married woman from becoming “ accommodation indorser, maker, guarantor or surety for another,” that the defendant’s request to the court to charge that under all the evidence the plaintiff was not entitled to recover should have been granted. The plaintiff’s agent testified: “Mr. O’Neil called on me and asked me to loan him some money, $1,500, representing to me that his wife had been sick in the hospital. He required the money to pay the physicians’ bills. . . . We had a long conversation and finally I was persuaded out of sympathy for Mrs. O’Neil. ... I asked him for her security. I drew the note. ... It was not paid at maturity, although he promised to pay it before maturity, and I indulged him for a long time before l asked him for a second note.” There is no testimony which modifies this statement or alters its legal effect, and the only possible inference from it is that the loan was made to the husband and that his wife became his surety. Neither the fact that the money was borrowed to pay for services rendered the wife nor the fact that she was the maker of the note gave rise to a presumption which shifted the burden of proof and required the submission of the case to the jury. The husband was primarily liable for the physicians’ bills, and no question of his agency for his wife in securing the loan was suggested by the testimony. The loan was made to him for [144] his use. The form of the note might have led one without knowledge of the transaction to regard the wife as the principal debtor and have required proof from her that she was an accommodation maker; but the party who made the loan was not without knowledge. He intended to loan to the husband, with the wife as surety, and that is what he did. As this appeared in the plaintiff’s case in chief, the only question was one of law and there was nothing to submit to the jury. The judgment is reversed.