Northern Bank & Trust Co. v. Graves , 79 Wash. 411 ( 1914 )

Ellis, J.

This is an action against the defendant wives on a promissory note which was signed by them and also by their husbands. The husbands were made parties defendant in compliance with the statutory requirements that husbands be joined in suits against married women. Rem. & Bal. Code, § 181 (R C. 81 § 11).

The action was tried before the court without a jury upon a written statement of agreed facts, from which it appears that the husbands, for some time, had been engaged in business as partners, under the firm name of Federal Paint & Wallpaper Company; that, in the prosecution of this business, they had become indebted to the plaintiff for money borrowed and used in the business, in the sum of $2,900, evidenced by five demand notes, executed by all of the defendants in this action; that, on July 1,1912, about seven months after the maturity of the last note, the note now in controversy for $2,900, due one day after date, was executed by the partnership and also by the individuals composing it, and, before delivery, was signed on the back by the individual partners and their wives. There is no controversy as to the execution of the note. The note contains the usual words “one day after date, without grace, I promise to pay,” and waives presentment for payment, protest, and notice of protest for nonpayment by all the parties thereto. From the statement of agreed facts, it further appears that there was no consideration for the wives signing the note “other than such consideration as inured to the benefits of the matrimonial community existing between the said defendants E. L. Graves and Helen M. Graves, and said defendants G. E. La-Belle and Clara LaBelle.” It is admitted that the husbands have gone into voluntary bankruptcy, and that the plaintiff filed its claim against the bankrupt estates on account of this note, and received a dividend of $152.01. It is further admitted that the plaintiff is the owner and holder of the note, and that no part of it has been paid, except interest to November 1, 1912, and this bankruptcy dividend. The trial court dismissed the action. The plaintiff appeals.

There is no claim of absence or failure of consideration as against the husbands, nor that the signatures of either the husbands or the wives to the note in question were obtained by fraud or through mistake. It is not claimed by the respondents that they signed as indorsers, their answer alleging and their argument being that they signed merely as members of their respective communities, and in order to bind the communities. This was, of course, unnecessary, since the signature of the husband alone to a note given for a community debt or in prosecution of a community enterprise is all that is necessary to bind the husband personally and the community, and to subject the community property to the judgment thereon. The signatures of the wives for this purpose would be an idle thing and without effect. The wives, in signing this instrument, must have intended that act to have some effect rath.er than none. Toon v. McCaw, 74 Wash. 335, 133 Pac. 469. Such also must have been the intention of the appellant in requiring their signatures. The fact that the wives made themselves parties to the note by signing it raises a presumption, not rebuttable by parol evidence, that they intended to bind themselves personally. In Hemrich v. Wist, 19 Wash. 516, 53 Pac. 710, the same defense was pleaded as that here in-, voked. The .note was a joint and several'note of the husband and wife. The husband died. The note was not presented to the administrator of the community estate within the time prescribed by statute. Action was thereafter brought against the wife upon the' note. The answer alleged a parol understanding that she was not to be held personally liable thereon, and that she signed it only as a member of the community. This' court, sustaining a demurrer to the answer, said:

“A defense of that kind should not be allowed to contradict the terms of the written instrument.' No fraúd was alleged as against the appellant in inducing her to sign the note, and we are of the opinion that her separate property became liable upon the contract.”

In Lumbermen’s Nat. Bank v. Gross, 37 Wash. 18, 79 Pac. 470, this court, holding that a community debt was sufficient consideration for a joint note of husband and wife, said:

“A community debt or obligation, past' or present, is a sufficient consideration for a joint note of the husband and wife. Upon such a note a personal judgment can be recovered against both husband and wife, and on such judgment the community property of the husband and wife, and the separate property of either, not otherwise by law exempt, can be taken in execution. It seems to us that any other rule would lead to the utmost uncertainty and confusion. Under the law of this state, a married woman has full liberty of contract. In order to bind her separate property, it is not necessary that she should enter into a specific agreement to that effect or for that purpose. Her signature to a contract imports the same obligation as the signature of any other person, viz.: that a jfidgment may be taken against her for failure to perform, and that her separate property may be taken in execution to satisfy the judgment.”

We are thus committed to the doctrine, which it would seem must, in any event, necessarily follow from the removal of the wife’s common law disability to contract, that a wife’s signature tó a contract imports the same obligation, as the signature of any other person, namely, that a judgment may be taken, against her for her failure to perform, and that her separate property may be taken in execution to satisfy the judgment.

As we have said, there is no claim that the wives signed the note merely as indorsers, though the position of the names, in the absence of the tacit admission that they signed as makers, might, under the sixth clause of § 17 of the negotiable instruments act, Rem. & Bal. Code, § 8408 (P. C. 857 § 33), warrant the holding that they signed as indorsers. Assuming, however, that they did sign as indorsers, that would not alter the case. They must still be held to have signed even in that capacity to some purpose rather than none. Their liability, under the foregoing decisions, would be the same as that of other indorsers. As pointed out . in Bradley Engineering & Mfg. Co. v. Heyburn, 56 Wash. 628, 106 Pac. 170, 134 Am. St. 1127, the main object of the negotiable instruments act was to make the law of negotiable instruments certain and to make such instruments speak the true intent of the parties. There is no good reason, either in law or morals, why this purpose should not prevail, even as between the original parties to a negotiable instrument, in the absence of fraud, mistake or failure of consideration. In any view of the case, the respondents must, under § 29 of the negotiable instruments act be held as accommodation parties. That section declares: . .

“An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to bé only an accommodation party.” Rem. & Bal. Code, § 3420 (P. C. 357 § 57).

As we have seen, if they were makers the community debt was a sufficient consideration for the joint note of husband and wife. If they be held indorsers, whether there was, in fact, an independent consideration for their indorsement is immaterial, since, without consideration, they, as accommodation parties, would be liable to the holder for value even with notice that they were only accommodation parties. This same rule prevails as in favor of an original payee. Gleeson v. Lichty, 62 Wash. 656, 114 Pac. 518.

It is true that this court, in the early case of Board of Trade of Seattle v. Hayden, 4 Wash. 263, 30 Pac. 87, 32 Pac. 224, 31 Am. St. 919, 16 L. R. A. 530, held that, notwithstanding the wife’s right to enter into contracts and manage her separate property, she cannot make a contract of partnership with her husband, and that, in the later case of Elliott v. Hawley, 34 Wash. 585, 76 Pac. 93, 101 Am. St. 1016, referring to the Hayden case, we said:

“The rule discussed and decided in the case cited is for the protection of the wife’s separate property, to prevent her from entering into such engagements with her husband that her separate property may be taken from her in satisfaction of his debts.”

That, however, is a very different thing from saying, as we are asked to say here, that the removal of the wife’s disabilities does not authorize her to enter into the same contract and incur the same obligations to third persons that any other person sui juris may enter into and incur. The contract here, whether the respondents be regarded as makers or as indorsers, is a contract not with their husbands, but with the appellant.

It is also true, as this court has often held, that a wife’s separate property is not ordinarily liable for community debts, but that is a very different thing from holding that she cannot make it so liable by her own contract. That, also, is a rule for her protection from the acts of her husband. It was never intended to reimpose her common law disabilities.

We have not discussed citations from other jurisdictions, since our own decisions are clearly controlling.

It cannot be doubted that a creditor has the right to proceed against a bankrupt debtor’s codebtor, whether the co-debtor be primarily or secondarily liable. Section 15 (a) Bankruptcy Act.

The judgment is reversed.

Crow, C. J., Main, Chadwick, and Gose, JJ., concur.