Opinion
3 Div. 579.
April 10, 1928.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Action on promissory note by F. A. Rhodes against D. M. Turner and another. Judgment for plaintiff, and defendant, Sallie S. Turner, appeals. Reversed and remanded.
By special plea appellant set up the defense that she executed the note as surety for her husband. Plaintiff replied that the note was executed by D. M. and Sallie S. Turner in settlement of a bill for material used in the construction of a house located on appellant's lot, and which was purchased by D. M. Turner, husband of appellant, as her agent, and that appellant, being fully advised of all the facts in connection with the purchase of said material, subsequently ratified the acts of her agent in the purchasing thereof by the execution of the note here sued upon jointly with D. M. Turner to cover the purchase price of said material.
Goodwyn Goodwyn, of Montgomery, for appellant.
The husband was not acting as agent for his wife in purchasing the material. Louisville Coffin Co. v. Stokes, 78 Ala. 372; Francis v. Reeves, 137 N.C. 269, 49 S.E. 213; Jones v. Harrell, 110 Ga. 373, 35 S.E. 690. Appellant executed the note sued on as surety for the debt of her husband, and cannot be held liable for its payment. Code 1923, § 8272; Wilson v. Andalusia Mfg. Co., 195 Ala. 477, 70 So. 140, 4 A.L.R. 1016; Wadsworth v. Hodge, 88 Ala. 500, 7 So. 194; Hanchey v. Powell, 171 Ala. 597, 55 So. 97; Hawkins Lbr. Co. v. Brown, 100 Ala. 217, 14 So. 110; Continental Bank v. Clarke, 117 Ala. 292, 22 So. 988; Lamkin v. Lovell, 176 Ala. 334, 58 So. 258; Richardson v. Stephens, 114 Ala. 238, 21 So. 949; Horton v. Hill, 138 Ala. 625, 36 So. 465; Herrin v. Burnett, 217 Ala. 23, 114 So. 406.
Walton H. Hill and Hill, Hill, Whiting, Thomas Rives, all of Montgomery, for appellee.
Plaintiff's replication was proved. By the execution of the note, the wife ratified the act of her husband in purchasing the material for her benefit. 2 C. J. 475; Brooks v. Cook, 141 Ala. 499, 38 So. 641; Chandler v. Wilder, 215 Ala. 209, 100 So. 306; Womack v. Myrick L. Co., 200 Ala. 591, 76 So. 949.
The judgment was against D. M. Turner and Mrs. Sallie S. Turner, his wife. The wife alone appeals. The question presented is whether the note signed by this appellant was as security for a debt owing by D. M. Turner, the husband. There is no statute better known or that has been more often the subject of judicial construction than section 8272 of the Code of 1923, which declares that: "The wife shall not, directly or indirectly, become the surety for the husband." The provision of the law has at times worked hardship and injustice, and has been often the subject of judicial criticism; nonetheless, it has always been upheld and, where it appears that wives have undertaken to secure the debts of their husbands, the courts have not hesitated to intervene and to declare the contracts void.
In the instant case, there can be no doubt that the original credit was extended to D. M. Turner, the husband; that at that time he did not assume to act for his wife as her agent; that he purchased the material to build a house upon a lot belonging to his wife upon his own responsibility; that the material was charged to him, delivered to him, and that, so far as this plaintiff is concerned, the wife was never known in the transaction until D. M. failed to pay a balance due on the purchase price. True, the evidence discloses that the wife knew that D. M. was buying lumber and material, and was building a house on her lot; true, she is now enjoying, in a sense, the benefits of the transaction, but there is no evidence of agency shown whereby D. M. assumed to act as agent for and on behalf of his wife in the purchase of the material used in the building of the house. Code 1923, § 8272: Wilson v. Andalusia Mfg. Co., 195 Ala. 477, 70 So. 140, 4 A.L.R. 1016.
The insistence is made by appellee that, conceding the foregoing to be the law, he yet is entitled to an affirmance, for the reason that this cause was finally at issue on plaintiff's replication, which was proven. Appellee loses sight of the allegation of agency and ratification in the replication. There being no presumption of agency, by reason of the relation of the parties, the appellee is left without proof of this essential fact.
The trial court erred in its judgment. The judgment is reversed, and the cause is remanded.
Reversed and remanded.