Pruitt v. Kimbell Milling Co. , 247 S.W. 655 ( 1923 )

LEVY, J.

(after stating the facts as above). Error is predicated upon the ruling of the court that Mrs. A. C. Terry, a married woman, is liable 'in personal judgment on her indorsement of the notes. It appears that Mrs. A. C. Terry conducted a mercantile business for several years before and for eight or nine months after her marriage. She became indebted to the Kimbell .Milling Company on account, and for the purpose of securing the payment of the account indorsed and delivered the notes, which were her separate property. Under the present statute (article 4621) giving to. the wife the sole management, control, and disposition of her separate estate, a married wpman may dispose of her promissory notes and pass title to the same. In this easp Mrs. Terry could transfer the notes for her pre-existing debt, or as collateral security for such debt. But it is believed that she has not the authority under the terms of the statute to go further and incur the obligation and liability of an indorser of negotiable notes, as here presented. Indorsement is a separate and substantive contract, and is not a necessary prerequisite to effectual transfer or sale of a negotiable note. The contract of an indorser is, among other things, that if, when duly inesented, the note is not paid by the maker, he, the indorser, will, upon due and reasonable notice given him of the dishonor or refusal, pay the same. 1 Daniel on Neg. Instr. §§ 669a, 671; 3 R. C. L. p. 114S, § 363. By the indorsement of a note, then, a married woman would become legally liable for the note in the event the maker did not pay^the same. In effect the married woman by her indorsement obligates berself to become liable for the debt of another. And the statute (article 4624) expressly provides as follows :

“Provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract.” Red River National Bank v. Perguson, 109 Tex. 287, 206 S. W. 923.

The assignment therefore should be, we think, sustained, and the judgment be so modified as to deny a personal judgment against Mrs. A. C. Terry, and, as so modified, the judgment will be in all things affirmed. The costs of appeal will be taxed against appellees.

It may be proper to observe that any question of liability of Mrs. Terry for her original debt is not here presented by the pleadings.

The judgment is modified and affirmed.