Martin v. Suber

¶1the opinion of the court was delivered by

¶2This was an action to recover a specific sum of money, which the defendant had promised to pay to the plaintiff by her promissory note. The first allegation in the complaint, and the only one which it is deemed necessary to notice, is in the following words: “That the defendant is indebted to plaintiff in the sum of six hundred and sixty-five dollars and ninety-two cents, with interest from the 27th day of January, A. D. 1888, at the rate of seven per cent, per annum, which said sum of money the defendant, by her promissory note, bearing date the 27th day of January, A. D. 1888, undertook and promised to pay to plaintiff, a copy of which note is as follows, to wit:

*531“665.92. January 27, 1888.

“One day after date, I promise to pay to the order of J. N. Martin six hundred and sixty-five 92-100, for value received, with interest from date. (Signed) Texanna Súber.”

¶3The defendant answered, saying: “1. That she emphatically denies that she is, or was, indebted to the plaintiff in the sum of six hundred and sixty-five dollars and ninety-two cents, with interest from the 27th day of January, 1888, as stated in the complaint, or in any sum whatever. 2. That she admits that she did sign a note similar to the one mentioned in the complaint, and that she supposes that said note is correctly exhibited in the complaint, but she denies that said note represents any debt of hers, or that it is in any sense binding upon her. 3. That she alleges that the plaintiff herein had a claim or account against Mr. J. Benson Súber, of the county and State aforesaid, and urged her to give her note for, or assume the payment of, the said claim or account, at the same time, and as an inducement to her to accede to his request, promising her that she should pay the same when it suited her convenience, and at no other time, and distinctly promising her that she should not be pressed in the payment thereof; that under these promises she signed a note for said indebtedness of the said J. Benson Súber, the same being the note herein sued on; that if said note is to be held binding upon her, she demands that it be reformed by this court so as to conform to the real contract by her, if any legal contract she made with the plaintiff.” In the fourth paragraph of the answer the defendant alleges: “That at the time of the signing of said note, and at the present time, she was, and is, a married woman,” and had no legal capacity to make any contract such as that evidenced by said note. In the fifth paragraph she alleges that she has been damaged to an amount stated, by the conduct of the plaintiff in inveighing her into the signing of the said note, and by failing to incorporate therein the terms and conditions upon which she so signed, and by his failing to observe said terms, for which amount she demands judgment against the plaintiff.

¶4The plaintiff replied, denying the material allegations contained in defendant’s answer, upon which she rests her defence.

¶5*532At the trial, defendant’s counsel stated “that the execution of the note being admitted,” the defendant had the right to open and reply, and/ the court so ruled, to which exception was duly taken by plaintiff’s counsel. The trial proceeded accordingly, and after a charge by the Circuit Judge, a copy of which should be inserted in the report of this case, the jury found a verdict for defendant, and the plaintiff appeals from the judgment entered thereon upon the following grounds, alleging error on the part of the Circuit Judge in his ruling and in his charge in the following particulars: 1. In that he held that the defendant had the right to open and reply in this action, and that the burden of proof was upon the defendant. 2. In that he charged the jury, that the mere declarations of the husband were not enough to establish agency for the wife in this action, and that the burden of proof was upon the plaintiff on this issue, and that plaintiff must establish the agency to the satisfaction of the jury. 3. In that he charged the jury, that even in the event that the supplies were advanced to the husband, and the defendant afterwards gave her note for them, the plaintiff could not recover on this note, as the statute of 1887 requires that it must be such an instrument as would affect the separate estate of a married woman, and a promissory note is not s.uch an instrument; and even if it were, this note could not create a charge upon her separate estate, because the declarations required by the act is not contained in the note. 4. In that he refused or neglected to charge the request of the plaintiff, that the actions and conduct of the plaintiff (?) may go towards establishing the agency.”

¶61 As to the first ground of appeal, it is clear that there is no ground for the alleged error there complained of. Since the case of Addison v. Duncan, 35 S. C., 165, where the previous cases were collected and reviewed, it must be regarded that the rule is well settled, that where the plaintiff’s whole cause of action is admitted by the pleadings, and the defendant relies solely upon an affirmative defence, which, of course, he is bound to establish, the burden of proof is upon the defendant, and he is entitled to open and reply. As is there said: “The true test is, who would be entitled to the ver*533diet if the case is submitted to the jury simply upon the pleadings, without evidence being adduced by either side? If the plaintiff, then unquestionably the defendant, being the actor, would be entitled to open and reply.” Applying this test to the case under consideration, it is clear that there was no error in the ruling complained of. The plaintiff here sought to recover damages for the breach of the contract evidenced by the note set out iu the complaint, and all that it was necessary for him to show to entitle him to recovery, was the execution of said note by the defendant. But when the execution of the note was admitted in defendant’s answer, there was nothing left for the plaintiff to prove, and hence if the case had been submitted to the jury upon the pleadings simply, without any evidence being adduced on either side, there can be no doubt that the plaintiff would have been entitled to the verdict; as the only fact, which it would otherwise have been necessary for him to prove, having been admitted by the pleadings, there was nothing left for him to prove, and under such admission he would unquestionably have been entitled to recover.

¶7It is urged in the argument on behalf of the appellant, that the execution of the note was not, in fact, admitted by the answer; and to meet this view, we have been particular to set out the pleadings more fully than otherwise would have been deemed necessary. It seems to us impossible to read the answer without perceiving that the execution of the note was distinctly admitted more than once. In the second paragraph of the answer the language is: “That she admits that she did sign a note similar to the one mentioned iu the complaint, and that she supposes that said note is correctly exhibited in the complaint.” In the third paragraph the language is: “That under these promises she signed a note for said indebtedness of the said J. Benson Súber, the same being the note herein sued on" (italics ours). And in the fourth paragraph of the auswer defendant says: “That at the time of the signing of said note,” referring plainly to the note set out iu the complaint, she was a married woman, &e. In the face of these repeated admissions contained iu the answer, we are at a loss to conceive how it is possible to deny that the execution of the note was ad*534mitfced in the pleadings. This ease differs materially from the case of McConnell v. Kitchens, 20 S. C., 430, for there the action was based upon a written contract containing certain terms and stipulations, while the defendant in his answer, in effect, denied that the contract was properly described in the complaint, and, on the contrary, alleged that the contract really contained other terms and stipulations, as appeared by a copy thereof set out in the answer. Hence, it was very properly held, that the defendant, not having admitted in his answer plaintiff’s cause of action, as set out in the complaint, was not entitled to open and reply. Here, however, the defendant in her answer did distinctly admit the execution of the note set out in the complaint, and hence she was entitled to open and reply.

¶82 The second and fourth grounds of appeal, both relating to alleged errors in the charge in respect to agency, may be considered together. It seems to us that when the Circuit Judge instructed the jury that it was competent for a husband to act as agent for his wife, and that it was for them to determine whether the evidence was sufficient to show that, in this case, the husband was acting as the agent of his wife in purchasing the supplies for which the note was given, the jury were properly instructed as to the law applicable to that view of the case; for it certainly needs neither argument nor authority to show that before one person can be made liable for a contract made by another, there must be satisfactory evidence that the person making the contract had the authority of the person sought to be charged to make such contract. In other words, there must be satisfactory evidence of agency. This evidence may be direct or circumstantial, and when the jury were told that they “must take all the testimony bearing upon this issue and answer the question,” we do not see what more could be required.

¶93 *5354*534As to the alleged refusal of the implied request to charge “that the actions and conduct of the husband may go towards establishing the agency,” we think it is answered by several considerations. In the first place, the judge did not refuse to so charge the jury; on the contrary, his *535reply was: “I have told them they must take all the testimony they have heard bearing upon the subject of agency and determine that question.” In the second place, the testimony not being either set out or stated in the “Case,” we have no means of ascertaining whether there was any testimony upon which such a request could have been based. But, in the third place, we do not think that such a request could properly have been granted in its unqualified form, and, therefore, under the well-settled rule that when requests are submitted, unless they are correct as submitted, they may be refused, there is no error in refusing such- requests. Gunter v. Graniteville Company, 15 S. C., 443; Columbian Insurance Company v. Lawrence, 2 Peters, 25; Indianapolis R. R. Co. v. Horst, 93 U. S., 291. Now, if, as we shall presently see, mere declarations of the alleged agent are not competent to establish the agency, upon the same principle mere actions and conduct of the alleged agent would not be competent to establish agency. Hence, even if the Circuit Judge had flatly refused to charge in accordance with this implied request, which, however, we do not think he did, there would have been no error; for the mere actions and conduct of thehusband, unless shown to have been known to and acquiesced in by the wife, would not be competent evidence of the agency. That “the mere declarations of the husband will not be enough to establish such agency,” seems to us too plain for argument. It would be a very dangerous doctrine to establish, that one person could be made liable for a debt contracted by another, simply by the declarations of the person contracting the debt that he was acting as agent of the person sought to be charged. Indeed, we think that until there is some other evidence of the agency, such declarations are mere hearsay, and as such incompetent. See 1 Greenl. Evid., p. 158, note (b), and cases there cited. Renneker v. Warren, 17 S. C., 139.

¶10*5365*535It only remains to consider the third ground of appeal, which, as it seems to us, was taken under a misconception of the judge’s charge. In the first part of the chai’ge the jury were fully and properly instructed as to the law applicable to the case outside of the act of 1887, in terms to which no exception was or could be taken. But as the note sued on was *536executed after the passage of that act, it became necessary to construe that act in order to ascertain whether the defendant would be liable, even though the jury should come to the conclusion that the supplies, which constituted the consideration of the note, were furnished to the husband and not to the wife. It is very manifest that the jury must have reached the conclusion that the supplies were furnished to the husband and not to the wife, for otherwise their verdict, under the first part of the charge, would necessarily have been in favor of the plaintiff. So that this ground of appeal raises only the question whether the Circuit Judge put the proper construction upon the act of 1887. The first section of that act (the only one pertinent to this controversy) reads as follows: “All conveyances, mortgages, and like formal instruments of writing, affecting her separate estate, executed by a married woman, shall be effectual to convey or charge her separate estate whenever the intention so to convey or charge such separate estate is declared in such conveyances, mortgages, or other instruments of writing.” As was held in Scottish &c. Company v. Mixson, 38 S. C., 432, the manifest object of that act was to effect a radical change in the previous law, not only by substituting a question of intention for a question of power, but declaring how such intention should be manifested. Hence, whenever a question as to the liability of a married woman on any of the classes of written instruments referred to in the act is presented, the question is no longer a question whether the married woman had the power to make such instrument, but the sole inquiry is whether she has declared her intention, in the instrument, to charge her separate estate.

¶11It will be observed that the act does not cover all instruments in writing, but only “conveyances, mortgages, and like formal instruments of writing” affecting the separate estate of the married woman. Hence, unless the instrument in writing in a given case falls within one or the other of the classes mentioned, the act will not apply. So that the first inquiry here is whether a mere promissory note falls within either of the classes mentioned. We agree with the Circuit Judge that it does not, for the reason that it is not a “like formal instrument *537in writing” to either of the classes specifically mentioned— conveyances or mortgages — which necessarily imply a transfer of, or a charge upon, the separate estate of the married woman. This is not only implied from the essential nature of the instruments specified, but also from the subsequent words in the statute, “shall be effectual to convey or charge her separate estate.,” Now it is very clear that a simple promissory note has none of the elements of a conveyance, and it seems to us equally clear that a note cannot properly be said to be a charge upon any estate. But even if we are in error in this latter respect, a note is certainly not an instrument affecting the separate estate of the married woman.

¶126 But without resting our decision upon this point, it is sufficient for ns to say that the absence of any declaration of intention on the part of the maker of the note, in the note upon which the action was based, was abundantly sufficient to take the case out of the operation of the statute. For this court has held, in the case of Reid v. Stevens, 38 S. C., 519, that even in the case of a formal mortgage of real estate, which does not contain the declaration of intention provided for by the act of 1887, the married woman will not be bound unless it appears that the contract which the mortgage was given to secure, was a contract as to her separate estate.

¶13The judgment of this court is, that the judgment of the Circuit Court be affirmed.