Story Case

Mrs. Robert Rockwell, a married woman, living in Arkansas and owning property there, agreed in 1914 to become surety on a note for John Farwell. The note was executed by Farwell for five hundred dollars in favor of Henry Cullet, and Mrs. Rockwell agreed to pay it providing Farwell failed. The latter did not pay and Cullet brought suit against Mrs. Rockwell. Mrs. Rockwell's defense was the old common law inability of a married woman to make a contract. Cullet replied that the statute of Arkansas gave a married woman the right to contract and bind herself. Which party is correct?

Ruling Court Case. Sidway Vs. Nichol, Volume 62 Arkansas Reports, Page 146; Volume 34 Southwestern Reporter, Page 529

The plaintiff, Sidway, made a loan to Mrs. Nannie Nichols, for the repayment of which Mrs. Nichols and her husband gave a promissory note to the plaintiff. After the death of both, the plaintiff began this action upon the note against the personal representative of Mrs. Nichols. They are liable providing she was liable when living. Prior to the time when she gave this note a statute was enacted in Arkansas which provided that property owned by a married woman at her marriage, or afterwards acquired, should be her separate property. It was further provided that she might bind herself upon contracts in respect to her separate estate.

Decision: This note was binding upon Mrs. Nichols; the effect of the statute, referred to in the statement of facts, was to permit her to borrow money, rendering such an obligation a contract in respect to her separate estate, even though by the act she was acquiring separate estate.

Mr. Justice Riddick said in part: "Such a contract before the enabling act was passed created no personal liability against her, for the reason that the separate property of married women, before the passage of such laws, was altogether a creation of the court of equity. By the common law she could make no contract; the contracts of a married woman were void at law. Inasmuch as her creditors had no means, at law, of compelling the payment of her debts, the courts of equity, which had created her separate estate, took upon themselves to enforce her promises, not as personal liabilities, but by laying hold of her separate property as the only means by which they could be satisfied.

"While the law stood in this condition, our constitution was adopted, and statutes were enacted providing that property owned by a married woman at the time of her marriage, or acquired afterwards, should be and remain her sole and separate property, providing that that bargain or contract made by her in respect to her sole and separate property, business or service, shall not be binding on her husband or render him or his property in any way liable therefor, but she may sue alone or be sued alone in the courts of law on account of said separate property, business or services.

"Our conclusion is that a married woman has under our law the right to purchase personal property, or borrow money for her separate use, and that the property purchased or money borrowed became her separate property. Her contract to pay for the same is a contract in reference to her separate property and creates a personal obligation, valid in law and in equity, and without regard to whether she owned any additional property or not."

Ruling Law. Story Case Answer

When statutory separate estates were created for married women, it likewise became necessary to permit her to make contracts in order that she might derive some benefit from such estates. Just what contracts she can make, and whether she binds herself or her separate estate, depend entirely upon the statutes creating the estate. These statutes, in general, provide that married women may own property, real and personal, free from the claims against the husband and free from his control. They also provide that she may make contracts, sue and be sued, in reference to her own estate. These statutes, like the one in Arkansas, do not generally give a married woman the right to contract beyond matters pertaining to her own property. She is still under the old common law disability when her acts pertain to other matters. In the Story Case, Mrs. Rockwell is not bound on her contract with Cullet because the agreement does not pertain to her own property. Her defense is good.