State Savings Bank v. Scott

Maxwell, Ch.- J. The defendants executed and delivered to C. L. Keim & Co. a promissory note, of which the following is a copy: “ $426.70. Falls City, Neb., July 7, 1877. “ Ninety days after date, we, or either of us, promise to pay C. L. Keim & Co., or order, four hundred and twenty-six ¿0°0, for value received, negotiable and payable without defalcation or discount, and interest from date until paid, at the rate of twelve per cent, and ten per cent attorney fees, if collected by suit. Payable at the Falls City bank, Falls- City, Nebraska. “"Wl D. Scott, “S. A. Scott.” The note was transferred before due, for a valuable consideration, to the plaintiff, without notice of any defense. In 1879 the plaintiff instituted an action on the note in question against the defendants in the dis [86] trict court of Nemaha county. The defendants answered plaintiff’s petition, alleging, 1st, that the note was obtained for an usurious consideration; 2d, that S. A. Scott was the wife of W. D. Scott. On.the trial of the cause the court found for the defendants, and a motion for a new trial having been overruled, dismissed the action. The plaintiff brings the cause into this court by petition in error. .The first question presented by the answer has already been passed upon by this court in the case of Wortendyke v. Meehan et al., 9 Neb. 221. Here it is clearly shown that during the month of July, 1877, the plaintiff purchased the note in question, properly endorsed, of C. L. Keim & Co., for “the face of said note less ten per cent interest, for the immature time,” and that the plaintiff had no knowledge that said note was usurious. Such 'being the case, the plaintiff comes clearly within the rule laid down in Wortendyke v. Meehan, and may recover thereon. The court found that S. A. Scott signed the note in question as surety for her husband, and was not liable thereon. This is assigned for error. In the case of Davis v. The First National Bank of Cheyenne, 5 Neb., 247, this court uses the following language: “ The statute confers on her [the wife] the right and power to make legal and binding contracts; it gives her the legal right to sue, and makes her legally liable to be sued on her contracts, in the same manner as if she were unmarried.' * * * * But the rule must be observed, that all such contracts of a feme covert must be with reference to, and upon the faith and credit of, her separate estate.” And the same doctrine is affirmed in Hale v. Christy, 8 Neb., 264. This being the construction given to this statute more than three years ago, it has become a rule affecting the rights and liabilities of individuals, and, [87] if unsatisfactory, should be changed by the legislature and not by the court. As it does not appear in the record that the contract of suretyship was made by the wife upon the faith and credit of her separate estate, or with reference to the same, the judgment as to her must be affirmed; but as to Winchester I). Scott, the judgment is reversed, and the cause remanded for further proceedings. Reversed and remanded.