Casner v. Preston

Mr. Justice Walker delivered the opinion of the Court: Appellee filed in the probate court of Piatt county, at the October term, 1882, a claim for allowance against the estate of Christopher Casner, amounting to $4000, with interest. The claim was evidenced by this instrument: “Bement, Illinois, October 18, 1880. “Six months after date I promise to pay M. C. Preston (4000) four thousand dollars, with six per cent interest from date.” It was signed with the name of deceased. To it was attached this memorandum: “If I fail to deed to her the two hundred acres of land where she now lives, in her own name, as I have agreed to do, where the buildings and improvements are is hers. ” This memorandum was neither signed nor dated, but was below the note, and on the same paper. The administrator denied, under oath, the execution of the note, and filed a plea that it was without consideration; also, the plea of non-assumpsit, not sworn to,—to which replications were filed. There was a trial in the probate court, by the court and a jury, and the issues were found in favor of appellee. The administrator appealed the case to the circuit court, where, on a trial by the court and a jury, the same verdict and judgment were rendered. He thereupon removed the case, by appeal, to the Appellate Court, where, on a trial, the judgment of the circuit court was affirmed, and he appeals to this court, and urges a reversal. The jury and the Appellate Court having found that deceased did make the note, and that there was a sufficient consideration, and that the note was not settled, as claimed by evidence admitted under the plea of the general issue, these findings are conclusive on us, the statute having forbidden this court from reviewing such facts. But it is insisted that appellee, being a married woman, was incapable of entering into such a contract, and the case of Olney v. Howe, 89 Ill. 556, is referred to in support of the proposition. In that case the administratrix claimed under a written agreement with her mother, who was a married woman, and it was held that under the Married Woman’s law, as amended in 1869, she had no power to execute such a contract as' was in controversy in that case. It was there agreed that if the daughter should furnish the mother, who was a feme covert, with a home and support for life, the daughter should have certain promissory notes, the mother retaining the notes and to have the interest arising from them during her life. The notes were neither assigned nor delivered to the daughter. But this note and agreement were executed after the adoption of chapter 68 of the Revised Statutes of 1874, the 6th section of which authorizes a married woman to contract and incur liabilities, 'which may be enforced against her as if she were sole, and unmarried. The only expressed limitation is, that she shall not enter into partnership business without the consent of her husband. This provision of the law confers ample power on married women to enter into such a contract as this, especially so when not objected to by the husband. It is insisted that a married woman, from the relation of husband and wife, is required to devote her labor, attention and care to her husband and family, and to hold, under even that section, that she may contract to support and devote her care and attention in nursing another person for life, is destructive of marital duties and obligations. Whatever the duty in case the husband objects to such a contract, in this case he, so far as can be learned from this record, made no objection. It is certainly true that no one else can interpose such an objection but the husband. The note was executed and delivered, and required nothing more to perfect its execution and validity. Unlike the case of Olney v. Howe, there was nothing more to be done to vest the legal title of the note in appellee. There the title, by the terms of the contract, was not to pass to the daughter till the death of the mother. It was held to be in the nature of a devise; but here the title vested in appellee on the delivery of the note. Nor did it matter in the least that a portion of her part of the contract still had to be performed. If she failed to perform the balance of her agreement, that would have gone to the consideration of the note, but not to its validity. This is the broad distinction between the two cases. There is no complaint that the court erred in any of its rulings on the law, on the trial. It is true that it is assigned for error that the trial court erred in refusing appellant’s instructions; but that assignment of error is not noticed in appellant’s argument, and seems to have been abandoned. The lower courts have found that appellee fully performed her part of the agreement, and deceased must have received the consideration for which he contracted and gave his note. Had appellee failed, refused, or had her husband prevented her from performing her part of the agreement before the death of the maker, then there would have been a failure of consideration to the extent of the unperformed portion of the contract. But that was not the case, as the lower courts have found. We do not hold that the husband did not have the power to compel appellee, at any time, to cease the performance of the agreement, or that she had the power to perform such a contract in despite of her husband’s objections. There seems to have been no objections by him in this case, and it must be inferred that his wife entered into and performed the agreement with the consent of the husband. Perceiving no error in the record, the judgment of the Appellate Court is affirmed. Judgment affirmed.