Mary R. Parker v. Cowan & Dickinson. MARY R. PARKER, in error, v. COWAN & DICKINSON. 1. HUSBAND AND WIFE. Merger. Ratification. Husband and wife executed a joint note for a debt of the wife, contracted before marriage, the husband dying, the wife promised to pay the note, held that the note did not extinguish the original debt, and that though not obligatory on the wife during coverture, yet it was capable of ratification, and it was ratified by the promise made after she became discovert. 2. CONSIDERATION. Moral obligation. A promise to pay may be supported by a moral obligation, when the obligation grows out of an original legal obligation which has been extinguished without being performed. FROM MONROE. In the Circuit Court, before E. T. HALL, J. W. J. HICKS, for the plaintiff in error, cited, Chit. on Contr., 48, 49; Sheppard v. Kindle, 3 Hum., 80; Bac. Abr. Baron & Feme H., 296. On confirmation; Maney v. Porter, 3 Hum., 347, 366; Bouv. Law Dict., Confirmation 1 and 5. Cherry v. Newsom, 3 Yer., 370-1. E. W. CROZIER, with him, cited 1 Par. on Contr., 26, 345, 361-2, and n. 3, lb., 20, 21; Hughes v. Peters, 1 Cold., 69; Bailey v. Freeman, 11 J. R., 221; Gilman v. Kibler, 5 Hum., 19; McGhee v. Lynch, 3 Hay, 105; Story on Contr., 435. T. R. CORNICK, for defendants, cited Litton v. Baldwin, 8 Hum., 214, which he distinguished from this Mary R. Parker v. Cowan & Dickinson. case, 1 Chit. Pl., 59; 1 Wheat. Selw., 268; Alder v. Buckley, 1 Swan, 72. On confirmation, Fitzpatrick v. School Commissioners, 7 Hum., 224; Jones v. Hamlet, 2 Sneed, 256. NICHOLSON, C. J., delivered the opinion of the Court. Plaintiff in error, whilst a feme sole, bought goods, wares and merchandise, of defendants in error, to the amount of $1,232. She afterward married, and in settlement of said account, her husband and herself executed their joint note to defendants in error, for the amount of the account. Soon after the death of Wm. Parker, her husband, the attorney of defendants in error, called on plaintiff in error, and presented to her the note and account, and requested payment. "She replied that she could not pay the debt just then but said it was a just debt, and she did not intend that the estate of her late husband, William Parker, should pay any part of the debt, as it was her debt that she made before she married him. She said that she would pay the claim, and asked indulgence for a short time, which witness promised to give and did give." Upon the failure to pay, suit was brought against her in the Circuit Court of Monroe county. The declaration contained two counts-one on the account, and the other on the note. The plaintiff in error put in the plea of nil debit, and several special pleas, to the effect that she was not liable on the account, because it was extinguished by the note, and not liable on the note, because she was a feme covert when it was exe Mary R. Parker v. Cowan & Dickinson. cuted. To these pleas there were replications and issues joined. The jury found a verdict in favor of defendants in error on the second count of the declaration, which was on the note; and upon the Court discharging a rule for a new trial, plaintiff in error appealed in error to this Court. When the Circuit Judge came to charge the jury, he was requested by the plaintiff in error to withdraw from them the evidence before detailed, as to the promises by plaintiff in error to pay the debt soon, and her request for indulgence. The Judge refused to withdraw the evidence; and his refusal to do so is the error now relied on for a reversal of the judgment. The first question to be decided is, what was the legal effect of the execution of the note by complainant and her husband, on the account made by complainant before her marriage? Was it an absolute extinguishment and satisfaction of the prior indebtedness resting upon the account? In Chitty on Bills, 172, it is said "A person, by taking a bill of exchange or promissory note, in satisfaction of a former simple contract debt, or of a simple contract debt created at the time, suspends his remedy, and is precluded from afterwards waiving it, and suing the person who gave it to him for the original debt, before the bill has been dishonored; for the taking of the bill is prima facie a satisfaction of the debt, and, at least, amounts to an agreement to give the person delivering it credit for the length of time it has to run." In Robinson v. Branch, 3 Sneed, 506, it was held that "the execution of a note, under seal, is prima Mary R. Parker v. Cowan & Dickinson. fucie evidence of a settlement of all pre-existing accounts between the parties, and casts the burden of proof upon the party asserting otherwise." It follows that the execution of the note by complainant and her husband, was not an absolute extinguishment and satisfaction of the original debt. It was a suspension of the right to sue on the original debt until the note was dishonored; and it was prima facie evidence that the account was settled and satisfied. The next question is as to the legal effect of the execution of the note by complainant, she being at the time a feme covert. With certain exceptions, a married woman is incapable of entering into any contract so as to bind herself personally, or of suing or being sued in her own name, during her coverture. By the execution of the note, therefore, she incurred no liability to be sued. But it does not follow that the original debt was thereby in any way affected. By her marriage the law suspended the right of her creditor to enforce his claim by suit against her; he could only enforce the claim by suit giving of the note by the husband had no other effect on the original debt, as we have seen, than to suspend the right of the defendant in error to sue, except upon the note, until payment thereof was refused. After pay against her husband. The ment of the note was refused, suit could be brought against the husband on either the note or the account; but during the coverture, suit could be brought against the wife alone upon neither the note nor the account. This was the legal consequence of her being a married woman. But whilst the note, during the coverture, cre Mary R. Parker v. Cowan & Dickinson. ated no obligation upon her, yet it cannot properly be said to be a contract void ab initio, as it would have been if given for a debt created during the coverture. Having been given for a legal liability existing before her marriage, the note can only be regarded as a nullity and as having no obligatory force during the coverture, and not after she became discovert, unless so ratified as to revive the original liability. The next question is, as to the legal effect of the promise made by plaintiff in error after she became discovert. It must be conceded that she was then under no legal obligation to pay the note. As the jury found by their verdict that she was liable on the account, and as we are not called on to determine whether that finding was erroneous or not, we need not express any opinion on that point. plaintiff in error was But as the jury found that the liable on the note, and as this finding was manifestly based upon the evidence of her promise to pay, the question is presented, was the Circuit Judge in error in refusing to exclude that evidence from the jury? It is well settled that "a moral obligation is not alone a sufficient legal consideration to support either an express or implied promise." 1 Story on Contr., § 465. But this general rule is subject to this exception: "A moral obligation to pay money or to perform a duty is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was enforceable at law, but for the interference of some rule of law." 1 Parsons on Contr., 361; 1 Story on Contr., § 466. |