Tompkins v. Triplett

Opinion of the court by CHIEF JUSTICE PAYNTER Reversing. This action is based upon a writing and figures and words ais follows: “$250.00. Owensboro, Ky., March 22d, 1895. For value received, six months after date we promise to pay to the order of A. C. Tompkins two hundred and fifty dollars, with interest at' the rate of six (6) per cent, per annum until paid. Nannie B. Triplett. Geo. V. Triplett.” Nannie B. Triplett is the wife of her co-obligor, George Y. Triplett, and was at the time the note was executed. Her defense to the action is that she was a married woman ai the time it was executed;. [826] that she was only surety on the note, and therefore it is not enforceable 'against her. The appellant replied that .she was the principal in the note, and that the money was loaned on the faith that she was the principal. The facts are: George V. Triplett applied to the appellant for the loan of $250. He refused to loan it to him, but told him that he would loan it to his wife. Thereupon 'Triplett procured his wife’s signature to the note, and 'delivered it to appellant. Under our statute, a wife’s estate can not be subjected to the payment of a liability upon a contract, after marriage, to answer for the debt, default, or misdoing of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance. Section 2127, Kentucky Statutes. This court, in Lewis v. Harbin, 5 B. Mon., 564; Emmons v. Overton, 18 B. Mon., 648; Bank v. Gaines, 87 Ky., 601, (9 S. W., 396); Skinner v. Lynn, 21 Ky. L. R., 185, 51 S. W., (167),—hold that, on a writing which is a joint and several obligation, an obligor may introduce parol testimony to show he is only surety; the reason therefor being that such testimony does not have the effect of contradicting it. This rule applies to actions by obligees against obligors. In Crumbaugh v. Postell 20 Ky. L. R. 1366, ( 49 S. W., 334,) it appeared that the husband, Crumbaugh, was indebted to Postell, evidenced by certain notes. Renewal notes were executed, signed by Mrs. Crumbaugh, a® principal, and her husband, as surety. The obligee knew that it was the debt of the husband. In speaking of the transaction, the court said: “But this could not have deceived Postell. He knew this was not .in fact a true state of ease.” The ■ court held that she was only surety, and no recovery could be had against her. In this case Tompkins refused to loan the husband the money, because he [827] was insolvent; but was willing to loan it to his wife,, which he did. After Tompkins refused to loan the money to him, he brought the note to him, purporting to have been first signed by the wife, and then by himself. The note imported that the wife wa>s the principal, and Tompkins believed that she was, and loaned his money upon the faith that she was the principal in the note. It was. said in Bank v. Gaines that “it is safe to say that, in a' large majority of cases, promissory notes, on which are principals a.nd sureties, are drawn up, ‘We, or either of us, promise to pay’ ” etc. This observation twas made to show that the obligee should not have been misled by the language employed in the note. In the Grumibaugh-Postell' case, the court made the case turn upon the fact that Postell knew the character of the obligation which the wife signed, it being for the debt of the husbanid. The court knows, and Tompkins presumably knew, that the usual way of signing obligations by principal and surety is for 'the principal to sign his name first on the note.. To present a note as signed in this case to any one, he would at once conclude that the person whose name appeared toll ave been first signed to it was principal. Mrs. Triplett made her husband her agent to deliver the note to Tompkins and received the money. She was bound by the representations which he made a>s her agent. 'The testimony of Tompkins is uncontradicted that he gave the credit to the wife, and the note was delivered to him with the representation that she was the principal in the note. A married woman empowered to contract as a feme sole was authorized to employ her husband as her agent. Dunn’s Ex’rs v. Shearer, 14 Bush., 574. A married woman is authorized under the present law to contract as a feme sole in the matter of borrowing money, and her husband can [828] act as her agent in doing so. When tbe wife delivered tbe husband tbe note, 'she made him ber agent to deliver it and receive tbe money on it. When tbe busband represented that she was tbe principal on tbe note, be wias acting within tbe apparent scope of bis authority, and she is bound by wbat be said and did. Com. v. Hawkins, 83 Ky., 246. Tbe judgment is reversed for proceedings consistent with this opinion.