Ritter v. Bruss

BaRdeeN, T. The evidence shows that the loan for which •the note in suit was given was negotiated by the defendant Julius for use in his own business; that the plaintiff had no -communication or negotiation with the wife, and knew that •she was not interested in getting tire money. The answer of the wife set up that she executed the note as surety for her husband, and that the transaction did not concern her separate property or earnings. The court promptly ruled out all testimony offered by the defendants tending to prove this defense. Such ruling was distinctly erroneous. It was competent for the defendants to show that plaintiff knew when the note was executed that the wife signed merely as surety. Riley v. Gregg, 16 Wis. 666; Irvine v. Adams, 48 Wis. 468, 4 N. W. 573. See Omaha Nat. Bank v. Johnson, 111 Wis. 372, 87 N. W. 237. It was also competent for the defendants to show that, as to the wife, the transaction did not concern her separate property or business or personal services. This has been permitted in so many cases.that to cite them all would merely incumber the record. See Mueller v. Wiese, 95 Wis. 381, 70 N. W. 485; Hollister v. Bell, 107 Wis. 198, 83 N. W. 297; Kavanagh v. O'Neill, 53 Wis. 101, 10 N. W. 369. When it appeared by the evidence that tbe defendant Wilhelmine was a married woman, and that the debt represented by the note was the husband’s, there could be no recovery against her in an action at law, unless it was shown that the transaction-was necessary and convenient for the use and enjoyment of her separate estate, or the carrying on of her separate business, or in relation to her personal services. [58] Mueller v. Wiese, 95 Wis. 381, 70 N. W. 485; Gallagher v. Mjelde, 98 Wis. 509, 74 N. W. 340; Hollister v. Bell, 107 Wis. 198, 83 N. W. 297; Stack v. Padden, 111 Wis. 42, 86 N. W. 568. As stated in tbe case last cited: “It is not sufficient that a married woman shall merely make a contract intending to charge ber separate property. It must concern ber separate property or business or personal services.” We cannot account for the ruling of the trial court, unless-it be tbat be was of opinion tbat the memorandum at the foot of the note, signed by the defendant Wilhelmine, rose to the dignity of a contract, and could not be disputed. But, as will be observed, the memorandum is not a contract. It utterly fails to express any consideration. It is, at best, a mere admission of intention. It did not, in law, bind the wife, because it lacked the essential attributes mentioned, and a showing tbat it concerned ber special property. Tbe complaint failed to show any foundation for its enforcement. While-it is true tbat it was held in Smith v. Dunning, 61 N. Y. 249, it was unnecessary to allude in the complaint to ber coverture or ber separate estate, still, when the evidence in defense shows coverture, there must be further proof of separate estate, and intent to charge it, before there can be a recovery at law. This court, however, seems to have covered this question-in Rogers v. Weil, 12 Wis. 664. Tbe action was to foreclose a mortgage securing a bond, signed by husband and wife. Tbe complaint showed tbat the parties were such, and upon default a judgment of foreclosure and sale was rendered, and, upon a deficiency being reported, a judgment therefor was entered against both defendants. Upon appeal by the wife,, this court said: “Still, at best, we all think tbat a party ought not to have a personal action upon a contract made by a married woman during ber coverture, without showing in tbe complaint tbat tbe contract related to ber own separate property, and was [59] one upon wbicb she might become liable to a personal judgment. This not being done in this case, it was erroneous to-take a personal judgment against Mrs. Weil for any deficiency.” Gaynor v. Blewett, 86 Wis. 399, 57 N. W. 44, was a similar case, and this court field that there should he no judgment against the wife for a deficiency unless there was a showing that she signed the note on .account of her separate-property, and with intent to charge the same. See, also,. Franke v. Neisler, 97 Wis. 364, 72 N. W. 887, to the same effect. The case of Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613, much relied on by plaintiff’s counsel, does not sustain their position. In that case the defendant, a married! woman, indorsed her husband’s note as follows: “Nor value received, I hereby charge my individual property with the payment of this note. “AumiNA Babcooe.” The complaint set out and the evidence showed that she had a separate estate, and intended to charge it. A judgment against her was sustained. In Maxon v. Scott, 55 N. Y. 247, the wife’s contract was not as surety for-her husband. It was-one made with reference to her separate estate, which she possessed, and was held enforceable against her. In Third Nat. Bank v. Blake, 73 N. Y. 260, the wife indorsed her husband’s note by a writing very similar to the one in the case at bar. Afterwards she signed a written contract, based upon a good consideration, reciting what she had done, consenting; to an extension of time on the note, and waiving all defenses. This latter contract was held binding upon her, and the suit at law was maintained. In Woolsey v. Brown, 74 N. Y. 82, the wife gave an undertaking, and in it charged her separate property, describing it. In such case it was held that plaintiff need not resort to equity to enforce it.. It is quite evident that these cases afford little or no justification for the ruling of the court below. In each case it appeared, either by the [60] 'complaint or evidence, tbat tbe wife was possessed of a separate estate, and made a valid and enforceable contract with reference to it. In tbe present case it is not shown tbat tbe wife possessed a separate estate. Neither can any question of estoppel fairly arise against tbe wife. Tbe plaintiff testified tbat be dealt entirely with tbe husband. Fie then spoke as follows: “I borrowed Mr. Bruss some money, and be says: ‘All’ right. I will make out a note to it.’ A short time afterwards' I didn’t get it, and be borrowed of me $1,000 more. I said: ■‘It is time now. Make out tbe note, and give it to me in my band now, and sign it from your wife', too.’ I paid him tbe money before be gave me the note.” Plaintiff, having made bis loan and paid over the money without any negotiation or communication with tbe wife, is in no position to invoke an estoppel against her. By the GourL — Judgment is reversed, and tbe cause is remanded for a new trial.