LANCASTER LAW REVIEW.

for the stock. It was offered and admitted in evidence.

Words and Phrases Judicially De

tract.

It can not be claimed that such demand is shown by the record of the plaintiff's testimony in a previous trial, where only such portions of the testimony were admitted as were referred to in the cross-examination of the plaintiff, for the purpose of contradicting him, and this portion contains nothing relating to a demand.

Appeal by E. E. Weaver, plaintiff, from judgment of C. P. of Lancaster Co., to January Term, 1912, No. 52, entering a compulsory non-suit in his action against The Consumers' Box Board & Paper Co., defendants.

The suit was brought to recover the value of certain shares of stock in the defendant company which plaintiff claimed the company owed him under a contract and had failed to deliver.

The Court below, HASSLER, J., refused the defendants' point, that there could be no recovery under the law and the evidence, but subsequently granted and made absolute a rule for judgment. for defendant n. o. v. on the whole record. (See 30 LAW REVIEW, 294.)

The case of Phillips v. Alleghany Car Co., 82 Pa., 368, the contract was different from this case and the Court assumed that the defendant stood ready to deliver the stock, which was shown not to be the situation here, and it was not, as here, an action for damages for nondelivery of the stock.

Moreover, this was a contract to receive stock in payment of services.

"It has been held that under a contract to work for a corporation and to receive payment in stock, an action will lie to recover the balance due without proof of demand of the stock."

Thompson's Commentaries on the Law of Corporations, vol. 2, sec. 1653.

"The plaintiff who has completed the work according to his sealed contract, may in assumpsit recover the balance due to him, although he covenanted to receive corporation stock in payment and has not demanded payment in stock before bringing his action."

Hallihan . Corporation of Washington, 4th Cranch's Reports, 304.

In the case of Hart v. Lauman, Barbour's Supreme Court Reports, vol. 29, page 417, which was a case involving an agreement to take a certain percentage of the contract price of certain railroad work, in the stock of the company, the Court held that having failed to tender the stock until after it had become depreciated and valueless, the company had lost its right to make such payment in stock.

The plaintiff could recover the value of the stock.

Humaston v. Tel. Co., 20 Wallace (U. S.), 20.

Pendery v. Carleton, 87 Fed. Rep., 41. "The proviso that no stock shall be

error this action of the Court.

or money or property actually received,' does not prevent payment for labor or

The testimony of the plaintiff, on the trial of the former suit shows a demand

dered, any more than it prevents contracts to pay in advance for property to be furnished."

Shannon v. Stevenson, 173 Pa., 419.

cross-examination, was asked with respect to his testimony in a previous case between himself and the appellee. With a view to contradict the witness, counsel offered in evidence so much of his testimony in the former case as was referred to in the cross-examination. So much

was admitted, and nothing beyond. What that case was, and what it involved, cannot be discovered from this testimony. It may have been for the same cause of action, and may have been the equivalent of a demand for the stock claimed by plaintiff; but the record of the suit was not offered, and there is nothing in the record before us that associates the present with the earlier action. Again, it may be that in parts of the testimony of the plaintiff in the former suit a previous demand is shown; but appellant meets with the same difficulty here, for nothing of the testimony was offered except that which related to the subject of the cross-examination, and a close inspection of that reveals nothing as to a demand. Appellant's whole reliance is upon the record of the earlier suit, which for some reason was not offered in evidence, and which may not now be considered. The assignments of error are overruled and the judgment is affirmed.

Where, in an action on a promissory note by a bank against the maker, a married woman, it appears that the note in suit was substituted by the bank for a prior note held against the defendant's husband, and the de

fendant received no consideration for her

assumption of the indebtedness, the defendant is an accommodation maker, and under the Act of June 8, 1893, P. L. 344, Sec. 2, there can be no recovery.

as an

The present suit was brought by the plaintiff to recover the balance due upon a promissory note for $4,500.00, dated October 26, 1910, and made payable to I. S. Bear & Co., thirty days after date. It was signed by Emma C. Bear, the defendant, who, it is admitted, was at the time, and is now, a married woman, and the wife of I. S. Bear, who was trading as I. S. Bear & Co.

Concerning the law of the case, there ought not to be much doubt. By the Act of June 8, 1893, P. L. 344, section I, it was provided "That hereafter a married woman shall have the same right and power as an unmarried person to acquire, own, possess, control, use, lease, sell or otherwise dispose of any property of any kind, real, personal or mixed, and either in possession or expectancy, and may exercise the said right and power in the same manner and to the same extent as an unmarried person, but she may not mortgage or convey her real property, unless her husband join in section 2 it is enacted that such mortgage or conveyance." And in Hereafter a married woman may, in the same manner and to the same extent as an unmarried person, make any contract in writing, or otherwise, which is necessary, appropriate, convenient or advantageous to the exercise or enjoyment of the rights and powers granted by the foregoing section, but she may not become accommodation endorser, maker, guarantor or surety for another.

Fol

since the passage of this Act, Mr. Justice Mestrezat, in Bank v. Poore, 231 Pa., 362, said: "It will be observed that, under the Act of 1893, a married woman occupies the same position with regard to her property and the right to make contracts as if she were unmarried, with the exceptions noted. Formerly, her capacity to contract was exceptional and her disability general; now the disability is exceptional and her capacity general, the burden being on her, when she seeks to avoid her contract, to bring it within one of the few exceptions." Patrick v. Smith, 165 Pa., 526.

It is, however, equally plain that, if the clear proof shows that the wife comes within the exceptions of the statute, the verdict ought to be for the defendant, and the Court should so direct. Thus, in Harper z. O'Neil, 194 Pa., 141, the plaintiff's agent testified: "Mr. O'Neil called on me and asked me to loan him some money, $1,500.00, representing to me that his wife had been sick in the hospital. He required the money to pay the physicians' bills. . . . We had a long conversation, and finally I was persuaded, out of sympathy for Mrs. O'Neil. . I asked him for her security. I drew the note. . . . It was not paid at maturity, although he promised to pay it before maturity, and I indulged him for a long time before I asked him for a second note." Mr. Justice Fell, in delivering the opinion of the Court, said: "There is no testimony which modifies this statement or alters its legal effect, and the only possible inference from it is, that the loan was made to the husband and that his wife became his surety. Neither the fact that the money was borrowed to pay for services rendered the wife, nor the fact that she was the maker of the note, gave rise to a presumption which shifted the burden of proof and required the submission of the case to the jury." In Sibley v. Robertson, 212 Pa., 24, it was held that, "where a married woman is sought to be held on an obligation as to which she claims that she is a surety for her husband, her liability is not determined alone by the form of the obligation, if the object was to evade the disability

created by the statute. The fact, not the form, will determine her liability." The language of Mr. Justice Green, in Wiltbank v. Tobler, 181 Pa., 103, is: "Since the Acts of 1887 and 1893, her contractual capacity has been very greatly enlarged, and we have cheerfully held her bound by her contracts to the full extent of her liability under those Acts. But the liability set up in the present case is still subject to statutory prohibition. The Act of June 8, 1893, section 2, P. L. 344, which is the source of her present contracting power, also contains a peremptory prohibition in the following words: But she may not become accommodation endorser, maker, guarantor or surety for another.' This species of liability she is still unable to incur, and hence her inability to make such contracts must be adjudged upon the same principles and authorities that were applicable prior to the new legislation. Governed by those principles, and acting upon those authorities, there is no room for any argument or discussion upon the question of her liability." In Murray v. McDonald, 236 Pa., 26, where most of the leading cases upon the subject were cited by counsel, it was held that "a judgment entered against a married woman On a judgment note which she signed as surety for her husband will be opened because the signing of such a note by a wife not only contravenes public policy, but also offends against a positive statute"; that "the wife is not estopped from asserting her right to have the judgment opened because she falsely certified, on the face of the note, that it was given for her own personal use and not as a guaranty or surety for any other person, nor is she estopped by the fact that she took no steps to have the judgment opened until four years after its entry." Class & Nachod Brewing Co. v. Rago. 240 Pa., 470, it was held that the Court below correctly charged the jury in the following words: "The law is, that a married woman cannot become surety. She may create a loan for herself and do what she pleases with the money after she borrows it, but she cannot become surety and if a married woman makes

66

In

Now, let us see what the undisputed facts of this case are. Mrs. Bear testified that she made the note as accommodation for her husband, and that she received no part of the proceeds. Ivin S. Bear, in his deposition, stated that, as I. S. Bear & Co., he received the proceeds, and that his wife, the defendant, did not, and that the bank knew all the facts surrounding the transaction. John C. Carter, the president of the bank, who was its cashier at the time the note was given, testified that the note was a renewal of another note of $5,000.00, of which the defendant was the maker, and that he knew she was a married woman. John M. Nolt, the paying-teller and assistant to the cashier, testified that the original note took up a note which was signed by Ivin S. Bear & Co., and endorsed by Ivin S. Bear, to which Mrs. Bear was not a party; that some of the payments of interest and on account of the principal were made from time to time by Mrs. Bear, and dividends were also allowed on the note in the bankrupt estate of Ivin S. Bear. When the original note of Mrs. Bear was accepted, the note of Ivin S. Bear, which preceded it, was charged off on the books of the bank as having been paid. It does not seem to me important who suggested the substitution of Mrs. Bear's note for that of her husband, for it is conceded that this was done, and that she received no money for the note and that it was presented to the bank and accepted by it in her absence.

I, therefore, do not think that there is anything to submit to a jury. The original loan was made to the defendant's husband, and he at that time gave his note for the debt. The original note, which was signed by her, was subsequently substituted for his note, and it is not pretended that she received any

The rule for judgment for the defendant non obstante veredicto is now made absolute, and judgment is now entere in favor of the defendant notwithstanding the verdict.

The rule for a new trial is discharged.

Samuel Hoffman v. John J. Pennell.

Judgment-Set-off-Opened judgment.

A judgment which has been opened generally and without terms cannot be set-off against another judgment which has not been opened.

Where a husband and wife each owe the whole amount of a judgment, such judgment may be set-off against another held by the husband alone.

Rule to show cause why judgment to August Term, 1913, No. 262, should not be set-off against judgment to May Term, 1912, No. 29, of Common Pleas of Lancaster County.

B. F. Davis and H. R. Fulton, for rule. E. M. Gilbert, contra.

July 11, 1914. Opinion by HASSLER, J.

The plaintiff obtained a judgment in this Court against the defendant to May Term, 1912, No. 29. The defendant had a judgment in the Court of Common Pleas of Chester County against the plaintiff and his wife, a transcript of which he entered in this Court to August Term, 1913, No. 262. A petition was presented to the Court of Chester County by Samuel Hoffman to have the latter judgment opened. While it does not appear in the petition or answer, both parties agreed at the argument of