C. P. and Q. S. OPINIONS. St. Mary's Orphans' Asylum, to the use of Charles L. Ambler, now to the use of Margaret E. Johnson, v. Eber E. Hilton and Margaret C. Hill, executors of Wilson Hill, deceased, and Margaret C. Hill, terre tenant. Rule to show cause why postponement of lien should not be revoked or set aside made absolute as to A. Belle Hilton. Jacob H. Ziegler v. Clayton K. Stauffer. Rule to show cause why a new trial should not be granted and rule for judgment for the plaintiff non obstante veredicto. Rule for a new trial made absolute and rule for judgment non obstante veredicto discharged. Daniel Buckwalter and H. S. Ober v. the President and Managers of the Lancaster and Lititz Turnpike Road Company. Rule to show cause why a new trial should not be granted discharged. James B. Douglass 7. Pennsylvania Railroad Company. Rule to show cause why a new trial should not be granted discharged. Christian K. Harnish v. Quarryville Railroad Company and Pennsylvania Railroad Company, agent. Equity docket. Bill dismissed at costs of the plaintiff. Wrightsville Hardware Company Assets Realization Company, George E. Shaw and Campbell Carrington. Opinion filed and decree ordered in favor of plaintiff. I. P. Hepler v. Louisa Scheetz and Abram Scheetz. Rule for a new trial discharged. Agnes Dessinger's use . Adam J. Danz. Rule for a new trial discharged. Alexander Ehrhart, now to the use of C. Eugene Montgomery, v. Christian B. Esbenshade. Rule to show cause why debtor's exemption of $300 should not be allowed discharged. Solomon H. Good v. I. H. Brooks, executor of Benjamin G. Good, deceased. Rule for a new trial discharged. Elizabeth K. Good, administratrix of Susan Good, deceased, z. I. H. Brooks, executor of Benjamin G. Good, deceased. Rule for a new trial. Rule for judgment for defendant non obstante veredicto. Both rules discharged. The People's Trust Company, Lancaster, Pa., v. Richard P. McGrann. Exceptions to sheriff's sale. Exceptions dismissed and sale confirmed. The People's Trust Company, Lancaster, Pa., v. Richard P. McGrann. Exceptions to sheriff's sale. Exceptions dismissed and sale confirmed. Henry Hess, administrator of Edwin Diffenbaugh deceased, v. Abraham H. Hess. Rule for a new trial. Rule for judgment for defendant non obstante veredicto. Both rules discharged. Hess. Sevillia K. By HASSLER, J.: George A. Kemper v. Sevillia K. Weidler. Rule to open judgment dis charged. v. George A. Kemper 7. Sevillia K. Weidler, George F. Weidler. Rule to open judgment discharged if plaintiff within ten days reduces the judgment to $335. with interest from date. George A. Kemper v. Sevillia K. Weidler, George F. Weidler. Rule to open judgment made absolute. Henry Carpenter v. the City of Lancaster. Rule for a new trial discarged. E. E. Weaver v. the Pennsylvania Railroad Company. Rule for a new trial discharged. The Berks County Trust Company v. E. O. Lyte. Rule for a new trial made absolute. John Burkins 7. Daniel L. Carroll. Rule for a new trial. Rule for judgment for defendant non obstante veredicto. Both rules discharged. Amos G. Hamaker, executor of the last will and testament of Catharine Beecher, deceased, v. S. S. Steffy. Case stated. Judgment for plaintiff for $404. Commonwealth of Pennsylvania v. W. Hayes Snyder. False pretense. for a new trial made absolute. Commonwealth of Pennsylvania v. C. C. Kauffman. False pretense. Motion to quash indictment refused. Rule Commonwealth of Pennsylvania v. C. C. Kauffman. Violating insurance laws. Motion to quosh indictment refused. Commonwealth of Pennsylvania v. Roy C. Nelson. Maintenance of children. Rule to revoke order made absolute. In re road in Fulton township. Exceptions to report of reviewers dismissed. one of the exceptions. There are but LANCASTER LAW REVIEW. two such exceptions since the passage of the Act of 1893, which are: (1) that she VOL. XXXI.] FRIDAY, JAN. 30, 1914. [No. 13 may not become accommodation endorser Common Pleas--Law. Kemper v. Weidler (No. 1). Married women-Contract-Act of June 8, 1893. Since the passage of the Acts of 1887 and 1893 the capacity of a married woman to contract is general and her disability exceptional, and when she seeks to avoid her contract the burden is on her to bring it within the two exceptions, viz., that she may not become accommodation endorser or surety or give a mortgage without her husband joining therein. Under the Act of June 8, 1893, P. L., 344. a married woman may borrow money for the purpose of paying her husband's debts, and give a valid note therefor, and the fact that she so used it does not make her a surety for her husband under the said act. Rule to open judgment. C. P. of Lancaster Co. August Term, 1910, No. 319. B. F. Davis, for rule. Coyle & Keller, contra. or maker or guarantor or surety for another; and (2) that she may not mortgage her real estate without her husband joining in such mortgage. Peter Adams' Co. v. Cassard, 206 Pa., 179. The Act of June 3, 1887, P. L. 332, provided that a married woman could make a contract only (1) where she engages in trade or business, or (2) where it is made in the management of her separate estate, or (3) when it is made for necessaries: Real Estate Co. v. Roop, 132 Pa., 496. By the Act of June 8, 1893, P. L. 344, she is permitted to make a contract for any purpose except, as stated, that she cannot become accommodation endorser or maker or guarantor or surety, and that she cannot mortgage her real estate without her husband's joining in the mortgage. This distinction between the Acts of 1887 and 1893 is mentioned, because it shows that many of the cases involving a contract under the Act of 1887 have no application in cases arising since the passage of the Act of 1893. In the present case the authorities relied on by the defendant to show that she is not liable for January 17, 1914. Opinion by HASS- money raised by her, which she used in LER, J. 66 The note upon which the judgment is entered in this case is signed by Sevillia K. Weidler, who is a married woman. We are asked by her to open the judgment for the reason that the note was not given for an indebtedness of her own, but for money for the benefit of her husband, and used for the payment of his obligations, with which your petitioner was in no wise connected, and which was well known to the said George A. Kemper (the plaintiff) at the time the money was loaned." Before the passage of the Acts of 1887 and 1893 the capacity of a married woman to contract was exceptional and her disability general. Now her capacity is general and her disability exceptional, and when she seeks to avoid her contract, the burden is on her to bring it within the payment of her husband's debts, have no application, because she is not forbidden by the Act of 1893 to borrow money for that purpose if she chooses to so use it. It is contended, however, that the defendant's acts in this case amounted to her becoming a surety for her husband, and therefore her contract was within one of the exceptions mentioned in the Act of 1893. The burden is on her to satisfactorily prove this to the Court, and she must do it by the preponderance of the testimony: Braden v. Wilson, 19 C. C., 650. She testifies that she borrowed the sum of $300 from the plaintiff, and that she used it to pay a debt owing by her husband to his brother. She does not testify that she told the plaintiff that she was borrowing the money to pay a debt of her husband, nor does she say her husband had anything to do with bor rowing it. The plaintiff and two witnesses testify that the defendant borrowed the money from him, and told him that she wanted it to pay a debt she owed to her husband's brother. There is no testimony in the case that can possibly be construed into showing that the amount of money due to the plaintiff on this judgment is a debt of the defendant's husband, or that she was surety or guarantor for him in borrowing it. The testimony does show that she borrowed the money herself, and, at the time she borrowed it, told the plaintiff that she was borrowing it for her own purposes. After she had it, she could do with it as she pleased. The fact that she used it to pay her husband's debt does not bring her act within one of the exceptions mentioned in the Act of 1893 in making her a surety. That Act expressly states that she can dispose of her personal property in any way she sees fit; that she can give it to her husband or pay his debt if she chooses to do so. Under the Act of 1887 she could not have borrowed the money for this purpose, and if one lending it knew she was borrowing it for such a purpose, he could not hold her liable to repay it. If she borrowed it-and the testimony shows that she did-it was her debt, and she did not become surety for the debt of her husband. The rule to open the judgment is therefore discharged. Kemper v. Weidler (No. 2'). Where, however, a wife and husband both sign a note, for money borrowed, the wife agreeing that a certain part of the amount thereof should be retained by the payee for a debt owing to him by the husband, she is her husband's surety for that amount and can compel a reduction of the judgment entered on the note by that amount. Rule to open judgment. C. P. of Lancaster Co. January Term, 1912, No. 155. B. F. Davis, for rule. Coyle & Keller, contra. January 17, 1914. Opinion by HASSLER, J. This judgment was entered on a judgment note signed by Sevillia K. Weidler and her husband, George F. Weidler. She asks us to open it, as to her, for the reason that in signing it she became surety for her husband's debt. In her testimony, she says that she borrowed the money for her husband, though she does not remember that anything to that effect was said when she borrowed it. She denied that she said she was carrying on the business of manufacturing cigars, herself. Her husband testified that the plaintiff knew the money was being borrowed for him, and that he told him that "if this does not see you through you had better throw up the sponge." The plaintiff testified that the petitioner told him that she was conducting the business of manufacturing cigars and needed the money for use in it, and that as an inducement to him to make the loan she agreed that $165 indebtedness Married women-Note-Surety-Act of of her husband should be paid out of the June 8, 1893, P. L. 344. A married woman may give a valid judgment note for money borrowed to pay her husband's debt. The fact that his name also appears on the bond is no evidence that the wife signed as surety for her husband, as prohibited by the Act of June 8, 1893, as they are presumed to be joint debtors and the burden rests on her to show that she was in fact a surety if she wishes to avoid the contract. The fact that under the wife's direction checks were made out to the husband for the money borrowed does not make it his debt where he was employed in a business which she was conducting. amount called for in the judgment; that, at her request, he made the checks payable to her husband, who was assisting her in the business. These checks were for $335, the plaintiff having retained the $165, the amount which George F. Weidler owed him. He is corroborated by his wife, who was present when the request for the loan was made, and afterwards when the bond was signed and the checks given. It was also testified that petitioner's husband suggested signing the bond, because it was to cover his indebtedness of $165 as well as money borrowed by his wife. Four other witnesses, from some of whom the petitioner borrowed money, testified that she told them that she was carrying on the business of manufacturing cigars in which her husband was employed. As we have shown in the opinion filed this day in the case of Kemper v. Weidler, August Term, 1910, No. 319 [see preceding case], since the passage of the Act of June 8, 1893, P. L. 344, a married woman can contract as though she were a femme sole, except that she may not become accommodation endorser or maker or guarantor or surety for another, and that she may not give a mortgage without her husband joining. The only question raised in this case is, Did Sevillia K. Weidler sign this judgment bond as surety for her husband? The fact that his name also appears on the bond is no evidence of this, as they are presumed to be joint debtors, and the burden rests on her to show that she was in fact a surety: Algeo v. Fries, 24 Sup., 427. The testimony does show that $165 of the amount of this judgment was for the debt of petitioner's husband, and she was, therefore, a surety for the payment of that amount. As to the remainder of the judgment, we do not think the petitioner has satisfactorily shown that she was surety for a loan to her husband. We are satisfied from the testimony that she told the plaintiff that she was conducting the business of manufacturing cigars, and was borrowing the money for herself to be used in that business. If she did so borrow it, and the plaintiff loaned it to her for that purpose, she was bound to repay it. The fact that she then gave it to her husband to be used by him does not change her liability, as under the Act of 1893 she could dispose of her money as she saw fit. The fact that under her direction the checks were made out to her husband does not make it his debt. He was employed in the business, which she said she was conducting, and as she could dispose of her money as she saw fit, she cannot escape liability to repay it to the person from whom she borrowed it, because she turned it over to him as her employee in that manner, any more than she could ! if she had given it to him a day or a week afterwards. As she is surety for her husband's indebtedness to the amount of $165, we direct the plaintiff to remit all of this judgment in excess of $335, with interest from the date of the bond, within ten days of the filing of this opinion. If this is done, the rule to show cause why the judgment should not be opened is discharged, otherwise it is made absolute. Kemper v. Weidler (No. 3). Married women-Note-Surety-Act of husband and wife will be opened as to the Rule to open judgment. C. P. of Lancaster Co. April Term, 1912, No. 165. B. F. Davis, for rule. Coyle & Keller, contra. January 17, 1914. Opinion by HASSLER, J. This judgment is entered on a judgment note signed by Sevillia K. Weidler, the petitioner, and her husband, George F. Weidler. On it is the following endorsement: "This note is given as colateral security for the payment of a note of like amount at the Farmers National Bank of Ephrata, Pa., bearing even date herewith." The note in bank referred to was the note of George F. Weidler endorsed by the plaintiff, who has since paid it. We are asked by Sevillia K. Weidler to open the judgment as to her, for the reason that she signed it as surety for her husband's debt. It appears in the testimony that she solicited a loan from the plaintiff to be used in the business of manufacturing cigars, in which she said she was en gaged. The money was obtained by the husband giving his note to the bank endorsed by the plaintiff. If she thus obtained the money, she was indebted to her husband for it, as he borrowed it from the bank for her. And when she signed the judgment note to secure the plaintiff for his endorsement of her husband's note she was securing him for the obligation he entered into for her husband. She thus became surety for her husband's debt, and as the Act of June 8, 1893, P. L. 344, forbids her making such a contract, it is invalid, and the judgment must be opened as to her. We, therefore, make absolute the rule to show cause why the judgment should not be opened as to Sevillia K. Weidler and allow her to make defense to it. Buckwalter v. The Lancaster and Lititz Turnpike Road Co. Damages for flooding-Lease of turnpike by traction company. A Turnpike Company which has leased its turnpike to an electric railway which controls it and collects the tolls, is not liable for damages for the flooding of adjacent land through the insufficiency of drains on the turnpike. Quaere, Whether the street railway company could lawfully lease the whole turnpike road. This question, however, can not be decided collaterally in this case but must be raised directly by the commonwealth. C. P. of Lancaster County. September B. F. Davis, for plaintiff and rule. H. S. Ober, owned a crop of tobacco, which during the spring of that year had been planted on Buckwalter's ground. It was testified that, about that time or shortly prior thereto, the brakes on the turnpike had been, in the instance of the Automobile Club, taken out of the road, and that the railway company had put boxes in to drain the surface water off. but that these were removed, and cinders placed there instead; that, as a consequence, there was not enough of drainage for the water which collected in Buckwalter's field, and in the spring of 1911 a terrible flood came and damaged the tobacco to a considerable extent. It was proven that notifications of the conditions had been given to Mr. E. P. Brinton, and that a number of interviews concerning the fixing of the drains had been had with him; but it was not shown that Mr. Brinton represented the turnpike company at that time. It was testified by Jacob Levering that he (Brinton) by Jacob Alt, tollgate-keeper, that the was the superintendent of the turnpike; money collected as toll was sent in to the office of the Conestoga Traction Company; and Mr. Brinton himself was called and testified that, in 1911, he represented the Conestoga Traction Company as their general manager of the Lancaster and Lititz Turnpike, and was employed by the Conestoga Traction Company. He also testified that the turnpike had been leased, under a written lease, to a company whose rights are now held by the Conestoga Traction Company. To summarize, therefore, there was sufficient evidence to go to the jury as to the insufficiency of the drains over the turnpike, and also as to damages sustained by the plaintiffs; but it January 17, 1914. Opinion by LAN- was also brought out in the plaintiff's DIS, P. J. Daniel Buckwalter, one of the plaintiffs, was the owner of a tract of land located in Manheim township, this county, along the line of the Lancaster and Lititz Turnpike, and also along the line of the Lancaster & Lititz Electric Railway Company, which is now, and has been, operated by the Conestoga Traction Company. In 1911, he, with evidence that the company in occupancy and control of the turnpike at the time of the injury was the Conestoga Traction Company, and not the Lancaster & Lititz Turnpike Road Company. After the plaintiffs closed their case, the defendants offered the lease of the Lancaster & Lititz Turnpike Road Company to the Lancaster & Lititz Electric Railway Company, dated August 28, 1894, and duly recorded on August 29, 1894. |