Kavanagh v. O'Neill

Cassoday, J. The note in suit was given in renewal of a note past due, executed by Thomas O’Neill and Jasper Grisim to the respondents, for a quantity of coal sold and delivered by them to Grisim, to be used in his distillery. At the time of its execution, the appellant, Mrs. O'Neill, was the wife of Thomas O’Neill, and had a separate estate; and it is claimed that the court had the right to infer, as it did, that she intended to charge that estate with the payment of the note, from the mere fact that she signed the same as surety, or accommodation maker, at the request of the respondents through her husband. The question whether such claim is well founded, is not necessarily here involved.. The question here to be determined is, whether the remedy for enforcing payment of such contract of suretyship is by an action at law or by bill in equity. In Todd v. Lee, 15 Wis., 380, this court [105] held that “ the contracts of a married woman, when necessary or convenient to the proper use and enjoyment of her separate estate, are binding at law. Conway v. Smith, 13 Wis., 125. All her other engagements stand as before the passage of the statute, good only in equity. The change from an equitable to a legal estate has not, with respect to them, enlarged her powers, or removed the disability of coverture; but she remains as if still possessed of an estate in eqnity, without restriction as to her power of disposition.” This distinction between contracts by a married woman, as enforceable by an action at law or in equity, has repeatedly received the sanction of this court. Krouskop v. Shontz, 51 Wis., 204, and cases there cited. In commenting. upon Conway v. Smith and Todd v. Lee, it was there stated that “ the court . . . did not go to the extent of holding that the statute gave to a married woman an unlimited power of contracting, and that all her contracts were enforceable by action at law, but only that a limited power of contracting was conferred by the statute, and that such contracts as came within the limitation could be enforced by legal remedies, in contradistinction to equitable.” Page 208. And again, on page 21T, it is said that “ the object of the statute, obviously, was not to enable her to do in equity what she could do before, but rather to partially restore to her that power and individuality which, in the eyes of the law, she had lost by entering into the marriage relation. It enabled her to dispense with trustees and indirect and complicated methods of business, and, within the scope of the statute, to act for herself and in her own name by simple and direct methods, which are recognized in courts of law, in all respects as if she were unmarried. Within the limitation of the statute, the law applicable to unmarried women is thereby made applicable to married women. The theory of the statute is not so much a creation of power which she never possessed, as a partial restoration of the power which she is supposed to have lost.” [106] The difficulty here is, that the facts do not bring the case within the limitation of the statute, and hence the power to bind herself at law, which Mrs. O'Neill lost by entering into the marriage relation, was not restored to her by the statute. Since neither Mrs. O’Neill nor her separate estate was in any way interested in or connected with the coal or its purchase, but her signature to the note was given merely as surety or accommodation maker for another, it is quite obvious that the contract was not such as she was enabled by the statute to make, and hence is enforceable, if at all, only in equity. "Whether a court of equity may infer an intent to charge her separate estate from the mere fact of her signing the note as surety or accommodation maker, is a question which we reserve until it is squarely presented. Such intent has' been inferred by the courts of Kansas, Missouri, and perhaps some others, as shown in Krouskop v. Shontz; but whether we should be inclined to follow them, is a question upon which we intimate no opinion. See Cramer v. Hanaford, ante, p. 85. Here, at the close of the evidence and arguments of counsel, the trial court allowed an amendment of the complaint, changing the action from one at law to an action in equity. Counsel for respondent seem to think that the amendment did not have that effect, b'ut we are inclined to think that was its purpose. The allowance of the amendment against the objection of the defendant was clearly error, and the exceptions to it are sustained by the repeated decisions of this court. Carmichael v. Argard, 52 Wis., 607, and cases there cited. By the Court.— The judgment of the county court is reversed, and the cause is remanded with directions to dismiss the complaint.