Strode v. Barnes

117 S.E. 420, 124 S.C. 403, 1923 S.C. LEXIS 125

• Court: Supreme Court of South Carolina
• Decided: May 14, 1923
• Docket: 11225
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Fraser.

Appellant’s statement of facts: trial proceeded before Special Judge H. P. Greeen and a jury at the March term, 1922, of the Court of Common Pleas for Spartanburg County.

“This is an action begun by service of summons and complaint in the Court of Common Pleas for Spartanburg County on or about the 18th day of July, 1921, and which came on for trial before Judge Rice, who became sick, and

“This suit is upon the promissory note hereinafter more specifically described, and which resulted in a verdict in favor of the plaintiff against the defendant, as follows:

'We find for plaintiff $4,500; interest, $252.75; attorney’s fee, $360 — total, $5,112.75.’

“The title of the cause was Norman A. Strode against W. P. Barnes and Nellie W. Barnes, but W. F. Barnes was never served with process and did not answer. Upon this verdict judgment was duly entered, and in due time notice of appeal given.”

I. The first assignment of error is the refusal of the presiding Judge to allow the appellant the opening and reply. This assignment of error cannot be sustained. The defendant pleaded that she had signed the note under duress; in other words, that it was not her obligation.

In Thompson v. Ins. Co., 63 S. C., 292; 41 S. E., 465, we find:

“The denial that Elliott Estes was the agent of the defendant was, in effect, a denial that the defendant entered into the contract as set forth in the complaint.”

II. The next question is the admissibility of an unstamped note in evidence. The Federal Statutes never did make rules of evidence for State Courts, and, further, that provision in the Federal Statutes has been omitted from the late Acts.

III. The next assignment of error is that his Honor the trial Judge held that, in order to avoid a note for duress, the payee must have notice of the duress under the laws of Georgia, where the note was made.

In Bateman v. Cherokee Fert. Co., 21 Ga. App., 158; 93 S. E., 1021, we find:

“Where a wife enters into an unambiguous written con tract whereby she is to become the owner of certain timber, and agrees to pay a stipulated price therefor, she is bound by her obligation as purchaser, if the seller committed no fraud upon her nor knew of any committed by the husband, notwithstanding the fact that by reason of such purchase an indebtedness of the husband, based upon a prior sale of the same property to him, was to be canceled.”

IV. It is assigned as error that the trial Judge held the contract was governed by the laws of Georgia, where the contract was made, and not by the laws " of Pennsylvania, where the contract was to have been performed. No prejudicial error has been shown by this assignment. The appellant alleged that the note was void by the laws of both States, and relied in part on the Statutes of Georgia.

V. The next question is: Was it error to hold that there is a presumption in Georgia that a note made by a married woman is for her own debt?

In Farmers’ & Traders’ Bank v. Eubanks, 2 Ga. App., 839; 59 S. E., 193, we find:-

“Where a married woman gives her individual negotiable note, the presumption of law is that she gave it on her own contract and for value, and when sued thereon the burden is on her to show that the note falls within some of the restrictions on her right to contract, and that the holder of the note had notice of its invalidity.”

This note was given to the husband. This assignment of error cannot be sustained.

VI. The next assignment of error is that his Honor charged the jury that a moral obligation is sufficient consideration to support a note of a married woman, and, when she makes a note to secure such a debt of her husband, it may thereby become an original obligation for which she is liable.

In Simmons v. International Harvester Company of America, 22 Ga. App., 358; 96 S. E., 9, the Court holds:

“Under our law a married woman cannot assume the debt of her husband (Civil Code of 1910, § 3007), and no superficial appearance will be permitted to lead the Court away from the true inwardness of the transaction. Bank of Eufaula v. Johnson, 146 Ga., 791; 92 S. E., 631. Thus, if the- wife did not in fact purchase and was not to receive the machinery under the contract sued on, but the whole transaction was merely a colorable scheme or device by which the wife \yas induced by the plaintiff to assume the previous debt of the husband, without any consideration flowing to her, she would have the right to repudiate the entire illegal and void transaction, no matter by what device its true inwardness and purpose had been concealed.”

This assignment of error is sustained.

The judgment is reversed, and a new trial ordered.

Mr. Chief Justice Gary and Mr. Justice Watts concur.