Schaeffer v. Ivory

Missouri Court of Appeals

Schaeffer v. Ivory

7 Mo. App. 461, 1879 Mo. App. LEXIS 121

CourtMissouri Court of Appeals

DecidedJuly 1, 1879

StatusPublished

Cited by1 cases

This text of 7 Mo. App. 461 (Schaeffer v. Ivory) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schaeffer v. Ivory, 7 Mo. App. 461, 1879 Mo. App. LEXIS 121 (Mo. Ct. App. 1879).

Pincite

Opinion

Hayden, J.,

delivered the opinion of the court.

This was a suit brought originally before a justice of the peace, upon a promissory note signed by the defendant when she was married and had a separate estate, and also signed by her husband, by which note the two promised to pay to the order of the plaintiff’s intestate $250, for value received, with interest from date, the 1st of January, 1874, at the rate of ten per cent per annum. The defendant became discovert on the 9th of January, 1875, and this suit was then brought against her as a single woman.

It is contended that the instrument cannot be treated as a note, as when she made it the respondent had no capacity to make a note; and that the justice had no jurisdiction, as this cannot be considered an instrument in writing, but a “ liability.” The questions were examined and disposed of in Hooton v. Ransom, 6 Mo. App. 19, and the decision in that case is decisive of this. The distinction was there dwelt upon between a void contract and a contract non-enforceable for the time being. Though the contract of a married woman is often called void in the books, this term is so used in the mere looseness of language. Equity is not in the habit of enforcing void contracts, and equity constantly enforces the contracts of married women during coverture, and when made during coverture. So, on the other hand, [462]*462when the temporary disability of marriage ceases, the law enforces the contract, which it would not do if the contract had been void. It serves no purpose to say that a married woman cannot make a contract, but may make an “ engagement ” or a “liability.” This is merely playing with words. She may make a contract, and for certain purposes the law as well as equity recognizes that she may do so. - As equity in the administration of justice blends more and more with the common' law, it leads only to mistakes to repeat expressions applicable exclusively to the common-law system as it formerly existed.

The judgment is reversed, and judgment will be entered here in favor of the plaintiff for the full amount of the note and interest.

All the judges concur.

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Hayden, J.,

delivered the opinion of the court.

This was a suit brought originally before a justice of the peace, upon a promissory note signed by the defendant when she was married and had a separate estate, and also signed by her husband, by which note the two promised to pay to the order of the plaintiff’s intestate $250, for value received, with interest from date, the 1st of January, 1874, at the rate of ten per cent per annum. The defendant became discovert on the 9th of January, 1875, and this suit was then brought against her as a single woman.

It is contended that the instrument cannot be treated as a note, as when she made it the respondent had no capacity to make a note; and that the justice had no jurisdiction, as this cannot be considered an instrument in writing, but a “ liability.” The questions were examined and disposed of in Hooton v. Ransom, 6 Mo. App. 19, and the decision in that case is decisive of this. The distinction was there dwelt upon between a void contract and a contract non-enforceable for the time being. Though the contract of a married woman is often called void in the books, this term is so used in the mere looseness of language. Equity is not in the habit of enforcing void contracts, and equity constantly enforces the contracts of married women during coverture, and when made during coverture. So, on the other hand, [462]*462when the temporary disability of marriage ceases, the law enforces the contract, which it would not do if the contract had been void. It serves no purpose to say that a married woman cannot make a contract, but may make an “ engagement ” or a “liability.” This is merely playing with words. She may make a contract, and for certain purposes the law as well as equity recognizes that she may do so. - As equity in the administration of justice blends more and more with the common' law, it leads only to mistakes to repeat expressions applicable exclusively to the common-law system as it formerly existed.

The judgment is reversed, and judgment will be entered here in favor of the plaintiff for the full amount of the note and interest.

All the judges concur.

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Bluebook (online)

7 Mo. App. 461, 1879 Mo. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaeffer-v-ivory-moctapp-1879.

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