Bank v. Buzzell , 60 N.H. 189 ( 1880 )

The question presented by the case is, Can a wife bind herself as a surety for her husband? It is conceded that at common law she could not, acting for herself, enter into such a contract. But the common law disability of married women, as judicially interpreted in a former state of society, has been essentially modified by the development of a later and different state of society; and their rights have been enlarged and defined both by adjudication and legislation. In this case it is attempted to hold Mrs. Buzzell personally liable as the surety of her husband on the notes in suit. Whether she received and used the money represented by the notes, is a question which is immaterial in our present inquiry. Messer v. Smyth,58 N.H. 298; Yale v. Wheelock, 109 Mass. 502; Hall v. Butterfield,59 N.H. 354; Bartlett v. Bailey, 59 N.H. 408.

The General Laws (c. 183, s. 12) provide that a married woman "may make contracts, and sue and be sued in all matters in law and equity, and upon any contract by her made * * * as if she were unmarried; * * * provided that no contract or conveyance by a married woman of property held by her in her own right as surety or guarantor for her husband, nor any undertaking by her for him or in his behalf, shall be binding on her." This statute, it is claimed, gives her capacity to make the contract of suretyship for her husband, because it gives her capacity to make other contracts, and that, being qualified to make the contract, she may be estopped to claim the protection of the statute. This reasoning is based on the assumption that all her common-law disabilities as to contracts are removed. But it was evidently the legislative intention to leave her, in cases like the present one, subject to the protection of the common law. The proviso in the statute is, in effect, a reenactment of the common-law disability of a married woman to be a surety for her husband. Major v. Holmes, 124 Mass. 108.

As Mrs. Buzzell did not possess the legal capacity to make this contract, the plaintiffs, however innocent, cannot enforce it against her. 1 Pars. Notes and Bills. 276, 277. Burley v. Russell, 10 N.H. 184. Concealment, fraud, or falsehood as to her relation to the contract, cannot confer capacity on her so as to entitle the plaintiffs to an action against her on the contract. Lowell v. Daniels, 2 Gray 161. For false representations and fraud a party may be subjected to punishment and to damages in a proper form of action, and legal incapacity to make a contract would not necessarily be a bar to the action. Fitts v. Hall, 9 N.H. 441. At common law a married woman is not estopped by her covenants, and she cannot by her own act enlarge her capacity to bind her separate estate. Palmer v. Cross, 1 Sm. M. (Miss.) 48; Jackson v. Vanderheyden, 17 Johns. 167. Her disqualification as a party to a contract prevents the application of an estoppel; otherwise it could be said that though she cannot make a contract because of her incapacity, when she attempts to make one by fraud or misrepresentation, legal ability is in some way conferred by estoppel; that is, she is not qualified to make a contract for herself, but is liable on one that she unsuccessfully tries to make. Keen v. Coleman, 39 Penn. St. 299; Lowell v. Daniels, 2 Gray 161, 169; Burley v. Russell, 10 N.H. 184. In cases of torts she may be estopped to deny that her representations are true; but in such cases her legal incapacity to bind herself by contract is not denied or qualified, and is not material as a ground of defence. Big. Est. 488, 490; Liverpool Adelphi Loan Association v. Fairhurst, 9 Ex. 422.

Although the acceptor of a bill or the maker of a note is estopped to say that the drawer and payee, or indorser, is an infant or a married woman, it does not follow that the infant or the married woman would be estopped to plead their incapacity. The maker of a negotiable note warrants that the payee has authority and capacity to transfer the title by indorsement; and if the payee happens to be a married woman, he makes the same warranty as to her capacity; but her disability to make a contract is not his disability to make the warranty. Therefore, in an action on the note, while he would be bound by his warranty of her capacity to make the indorsement, she would not be bound, because at common law she is not a competent Party to the contract. Sto. Prom. Notes, s. 87; Byles Bills 64; George v. Cutting, 46 N.H. 130; Drayton v. Dale, 2 B. C. 293; Taylor v. Croker, 4 Esp. 187.

Judgment on the verdict.

CLARK, J., did not sit: the others concurred.