Harvard Publishing Co. v. Benjamin

McSherry, C. J., delivered the opinion of the Court. Suit was brought in the Baltimore City Court by the Harvard Publishing Company of New York against Charles R. Benjamin and Margaret Benjamin, his wife. The declaration contains the money counts, a count on a promissory note executed jointly by the defendants, and a special count wherein it is alleged that Margaret Benjamin, by her promissory note, promised to pay to the order of Charles R. Benjamin two hundred and eighty-eight dollars and eighty-four cents, two months after date, “with the intent and understanding that said note should be indorsed by him to the plaintiff, to be by it received in part payment of certain property agreed to be sold by it to him by a contract dated November the eighteenth, 1895, and that said note was so indorsed by him to the plaintiff, and was duly presented for payment and was dishonored, &c.” With the declaration there was filed a promissory note drawn by Margaret Benjamin, the wife, and payable to the order of Charles R. Benjamin, the husband, and by him indorsed in blank. By leave of the Court the wife was allowed to make defence separately from her husband, and she accordingly filed a motion to quash the writ of summons against her for the following reasons : First, because she did not contract or promise to pay as alleged in the declaration ; and secondly, because being a married woman she is not subject to suit except as by statute allowed, and the cause of action set forth in the declaration is not a cause of action upon which by the statutes of the State of Maryland she may be sued.

The motion was sustained and the writ of summons was quashed as to the wife. From this order the pending appeal was taken. There are two questions presented by the record. The first is whether the note described in the special count and ³³⁸ filed with the declaration is a promissory note that is binding on the wife under the statutes of Maryland; and the second is whether the other counts of the declaration state a valid cause of action against the husband and wife jointly.

It is enacted in sec. 2, Art. 45 of the Code, that “any married woman may be sued jointly with her husband in any of the Courts of this State on any note, bill of exchange * * * contract or agreement which she may have executed jointly with her husband and this has been construed to include only contracts or agreements reduced to writing and signed by both husband and wife. Sturmfelz v. Frickey, 43 Md. 569 . The wife is liable to be sued at law only upon some contract or agreement that she is empowered by the statute to make ; her common law disability still continuing as to all other undertakings. Davis v. Carroll, 71 Md. 571 .

Inasmuch, then, as to be binding on her under the section of the Code quoted above, the contract or agreement sued on must be in writing and must be executed by the wife jointly with her husband; it is quite apparent that the provisions of the statute will not be gratified if but part of the contract be in writing and part in parol; or if the contract, promise or agreement be not executed by the wife jointly with her husband. If the contract be not wholly in writing, or if it be not executed jointly by husband and wife, and if it be a contract whose validity depends upon a compliance with the above quoted provision of the Code, there can be no liability on the part of the wife, and consequently no suit or action can be maintained at law thereon against her. This is the settled law of Maryland often declared and now merely reiterated. The averments of the special count of the narr. make it clear that the plaintiff seeks to hold the wife liable upon the noté therein described, not because the note upon its face discloses a contract in writing, executed jointly by the husband and wife, but because dehors the note it may be made by parol evidence to appear that the note was executed by the wife, with the intent and understanding that it should be ³³⁹ indorsed to the plaintiff, whereby the assent of the husband to the execution of the note by the wife is sufficiently evidenced to convert her note, payable to him, into the joint note of the two by his indorsement.

But if it be conceded that such evidence would tend to show that the note, which on its face is her note alone, was in reality the joint note of the two, it would clearly be inadmissible, for it would make her liability depend not on the evidence which the statute prescribes—a writing-—but upon parol. To allow this would broaden the statute by interpretation, and would directly reverse the ruling in Sturmfels v. Frickey, supra. But besides this, no parol evidence