Wilmer v. Gaither

Judge Miller delivered the following dissenting opinion, in which Judge Robinson concurred: In my opinion if a married woman signs a promissory note jointly with her husband, she is by the Act of 1872, ch. 270, placed, in respect to that note, in the same position as if she were a feme sole; that the payee has the same remedy against her that he would have against any other joint maker, and may maintain an action upon it against her whenever he could maintain such action against any one else. (Filed 6th January, 1888.) A motion was made by the appellant on the 7th of January, 1888, to have the judgment in the foregoing case modified. The application was granted, and the following opinion of the Court was delivered by Chief Judge Alvey: Since the filing of the opinion in this case, the appellant has moved that the judgment be modified, so that he shall he at liberty to proceed against George R. Gaither, the husband, and obtain judgment against him alone, if, upon the proof, the plaintiff be entitled to such judgment. And, upon mature consideration, we are of opinion that this application should be granted.

As stated in the opinion filed, it is certainly- true, as a well settled general principle, that in an action ex contractu against several joint debtors, the recovery must be had against all or none. But this general principle has its exceptions ; and we think, in view of the provision of the statute under which this action is brought, this case is fairly embraced within the principle of the exceptions to the general rule. The statute of 1872, ch. 270, provides that the wife may be sued jointly with her husband, and may employ counsel and defend such action separately, or jointly with her husband. But it does not declare that, in order to bind the ³⁵⁰ husband, the judgment shall be rendered jointly against husband and wife.

To give full force and effect to the provision of the statute which accords to the wife the right to defend separately, it would seem to be necessary that the liability of the wife and the husband should he separated, in the rendition of the judgment, where a good separate defence is. made by the wife, notwithstanding the joint .action and the joint terms of the contract. Suppose, for instance, the separate defence of the wife was fraud or duress in the execution of the contract. In such case, while the wife would be entitled to be discharged, upon proof of the defence, there could be no reason, upon that ground alone, for exonerating the husband. The exceptions to the general rule we have stated would seem to be well established by authority, and where such exceptions apply, as where, in an action ex contractu against several, one or more of the defendants, by way of defence, plead or otherwise rely upon bankruptcy, infancy or coverture, the judgment may be had against some of the defendants, and in discharge of others.

In' such cases, the matter pleaded is purely personal to the defendant relying upon the defence, which admits the making of the contract as laid, but which shows either that the contract was not binding, by reason of some incapacity in the party making it, or that it has been discharged by a certificate of bankruptcy, or other matter subsequent. Noke vs. Ingham, 1 Wils., 89. The bar, and consequent discharge, by operation of the Statute of Limitations, is purely a personal defence, and is quite analogous to the discharge under the bankrupt law. In the case of Tuttle vs. Cooper, 10 Pick., 281 , the cases upon this subject are fully examined by Chief Justice Shaw.; and while he maintained and applied the general rule in that case, he very clearly stated the exceptions to the rule, as established by the authorities.

At page 291 of the volume referred to, he said: “ Upon a review of all the ³⁵¹ cases, we think there is no one which throws any doubt upon the rule of practice, that in an action upon contract, against two or more, the contract must be proved as laid, and that in a trial upon the general merits, the plaintiff cannot have a judgment against one or more, where all are hot liable: That, however, there is an.exception to this rule, established by the English precedents, and somewhat modified and extended by the American cases, that where a defence can be made by one or more of the defendants, either by plea or by proof on the trial, which admits the making of the original joint contract, but shows matter of personal exemption or discharge, whether such exemption arises from an incapacity to contract, as in case of coverture or infancy, or by matter of subsequent discharge, as in case of bankruptcy, but which leaves the other contracting parties liable to the performance of the contract, such party may have a separate judgment against the plaintiff, and the plaintiff may have a valid judgment against the other contracting parties.” And to the same effect is the case of Hartness vs. Thompson and others, 5 John., 160. In that case it was held, that where several were sued as upon a joint contract, and one of the defendants pleaded infancy, the plaintiff could either enter a nolle prosequi as to the infant, and proceed to judgment against the other defendants, or the jury, under the direction of the Court, might find a verdict for the infant defendant, and a verdict for the plaintiff against the other defendants in the action,—the plea of infancy being a matter oí personal defence. Such, then, being the law, the Court below, instead of directing the jury to find their verdict for both defendants on the plea of the Statute of Limitations, should have directed the jury to find, on that plea, for the wife alone. All the prayers on the part of the plaintiff contemplated and sought to obtain a joint verdict against both defendants, and they were for that, if for no other reason, prop- ³⁵² (Decided 3rd February, 1888.) erly rejected.

We shall reverse the judgment and award a newtrial, but itwillbe withoutcosts as against Mrs. Gaither. Judgment of affirmance stricken out, and judgment reversed, and new trial awarded, but without costs to the appellant as against the appellee, Mrs. Gaither. Alvey, C. J., delivered the opinion of the Court. In the argument of this case several questions of interest were discussed quite fully, but in the view we have of the principal question involved, it will be unnecessary for us to notice all the questions presented.

The action was brought against husband and wife upon two promissory notes made jointly by husband and wife, in 1879. More than three years had elapsed from the time the notes fell due to the time of bringing the suit, and -the defendants severed in pleading, and each pleaded, with other pleas, the Statute of Limitations as a bar to the action. The plaintiff replied to the plea of limitations, that the defendants did, within three years next before the institution of the action, undertake and promise in manner and form as the plaintiff hath declared against them. It is shown in proof that the notes sued on were given for the debts of the husband, and that the wife became surety.

The husband made several payments on these notes within three years next succeeding the time when they became due, and the suit was instituted within less than three years from the date of the last of these pay ³⁴⁴ ments. The payments were made by the husband alone, it not appearing that the wife had any knowledge of the fact that such payments had been made. And the question is, whether such part payments have the operation and can be used in evidence, to deprive the wife of the benefit of the defence taken by her, of the bar of the Statute of Limitations ? The common law disability of the wife still exists in this State, except in the special cases, and to the extent, that the Legislature by statute have thought proper to remove or qualify such disability.

It is the Act of 1872, ch. 270, that is, relied on by the plaintiff in this case, as having removed the disability of coverture, and fixed upon the wife all the liabilities of a feme sole, in respect to the notes in question. That Act provides, 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, single bill, bond, contract, or agreement, which she may have executed jointly with her husband, and may employ counsel and defend such action or suit separately, or jointly with her husband, and judgments recovered in such cases shall be liens on the property of the defendants,” &c. In regard to the power to execute