The court below directed a verdict in her favor, and the plaintiffs bring error. Griffin & Dickinson for plaintiff in error. A wife is liable for improvements made on her own property, Lovell v. Williams 125 Mass. 439; Bickford v. Dane 57 N. H. 320; Spafford v. Warren 47 Ia. 51; Bodine v. Killeen 53 N. Y. 93; a husband may act as his wife's agent and she will be bound by contracts which he makes for her benefit, Knapp v. Smith 27 N. Y. 277; Woodworth v. Sweet 51 N. Y. 8; Rowell v. Klein 44 Ind. 291; McLaren v. Hall 26 Ia. 297; Buckley v. Wells 33 N. Y. 518; Ready v. Bragg 1 Head 511. Willard M. Lillibridge for defendant in error. A wife is not bound for expenses incurred by her husband on her own property against her remonstrance, Emery v. Lord 26 Mich. 432; Powers v. Russell id. 183; Willard v. Magoon 30 Mich. 280; Ainsley v. Mead 3 Lans. 116; Jones v. Walker 63 N. Y. 612; Miller v. Hollingsworth 33 Ia. 225; Druhe v. De Lassus 51 Mo. 165; Johnson v. Tutewiler 35 Ind. 353; Lauer v. Bandow 48 Wis. 638. GRAVES, J. We are unable to make any distinction in principle between this case and Morrison v. Berry 42 Mich. 389. So far as any difference is discoverable in the facts, it is not to the advantage of the plaintiffs in error. And see Newcomb v. Andrews 41 Mich. 518; Vanneman v. Powers 56 N. Y. 39; Woodruff Iron Works v. Adams 37 Conn. 233; Wright v. Hood 49 Wis. 235. The judgment must be affirmed with costs. The other Justices concurred. KENTON INSURANCE COMPANY OF KENTUCKY V. JOHANNA Affidavit denying execution—Married woman's note—Agency. The omission to file an affidavit denying the execution of a note A married woman's promissory note cannot be presumed valid, and A married woman cannot give her agent any powers which she does Error to Superior Court of Detroit. Submitted April 28. Decided June 9. ASSUMPSIT. Plaintiff brings error. Fraser & Gates for plaintiff in error. Where the execution of a note has not been denied by affidavit attached to the plea in an action thereon the note cannot be avoided by showing lack of capacity to execute it. Curran v. Rogers 35 Mich. 221; Chic. & N. E. R. R. v. Edson 41 Mich. 673; Boughton v. Manchester Water Co. 3 B. & Ald. 1; Hall v. Auburn Turnpike Co. 27 Cal. 255. Otto Kirchner for defendant in error. CAMPBELL, J. Plaintiff sued defendant, who is a married woman, upon a promissory note made by her and payable to the order of plaintiff for $290.42, dated September 4, 1877, and payable at nine months. She defends on the ground that the note was not given on such a consideration as binds her. A preliminary objection that this defense was waived by failure to file affidavit under Rule 79 has no force. Defendant does not dispute the execution of the note. Her defense is want of capacity to make it, except on a particular consideration. It has been held uniformly by this court that our statutes do not authorize a married woman to become personally liable on an executory promise except concerning her separate estate. A note given for any other consideration is void. De Vries v. Conklin 22 Mich. 255; West v. Laraway 28 Mich. 464; Emery v. Lord 26 Mich. 431; Ross v. Walker 31 Mich. 120; Jenne v. Marble 37 Mich. 319; Kitchell v. Mudgetl 37 Mich. 81; Carley v. Fox 38 Mich. 387; Johnson v. Sutherland 39 Mich. 579; Russel v. People's Savings Bank 39 Mich. 671; Gantz v. Toles 40 Mich. 725. It has also been settled that there is never any presumption of validity of such an undertaking, whether negotiable or not, and that proof must always be given of such a consideration as will bind her. We think that the rule must apply whether value received is expressed or not, because the power is not general but statutory, and cannot be extended beyond the constitutional and statutory limits. See Powers v. Russell 26 Mich. 179; Emery v. Lord 26 Mich. 431; West v. Laraway 28 Mich. 464; Johnson v. Sutherland 39 Mich. 579. It was held in the latter case that a bona fide holder was no better off than any one else, as against the disability of coverture. But inasmuch as plaintiff here is the original payee it is not a bona fide holder. Rickle v. Dow 39 Mich. 91. The evidence showed without contradiction that this note was given by defendant to her son, August Kuenzel, to use as security for a debt of a firm of Wright & Kuen . zel, in which he was a partner. That he gave it to one Jackson, plaintiff's agent, and took back from him an assignment to defendant from plaintiff of that debt, which had already been executed by plaintiff and was in Jackson's hands. Defendant never knew of this and never authorized it. A married woman cannot give to an agent any power which she does not possess herself, and cannot therefore appoint any agents that could bind her except concerning her property. Persons dealing with them must inquire into their powers. In the present case there is no evidence tending to show that any such inquiry was made, or that plaintiff or its agent acted in reliance upon any supposed authority, or in ignorance of the facts. The record is not inconsistent with the possibility that Jackson and the plaintiff made the assignment as a mere sham. There is no evidence of any bargain for an assignment supposed to have been made on the credit of defendant. All that appears is a delivery of an assignment which had already been executed, in exchange for defendant's paper. It does not appear that the bargain was made at this time if it was made at all, and there is no pretense that any earlier bargain or negotiation was made really or ostensibly on defendant's behalf. When the case was closed, therefore, no cause of action was made out, and the court properly directed a verdict for defendant. The judgment must be affirmed with costs. The other Justices concurred. JOHN B. WHITE ET AL. v. EAST SAGINAW. Sheriff's bond-Default as tax-collector-Surety's liability. Duties not yet existing and not germane to an office are not within the contemplation of sureties on the official bond, nor properly covered by their obligation. To bind the sureties the duties must plainly belong to the office. The collection of taxes by the sheriff is assumed to be a duty foreign to his position by Comp. L. § 1027, which provides for independent security for its performance. A sheriff's duties relate to the execution of orders, judgments and process of courts; the preservation of the peace; the arrest and detention of persons charged with the commission of public offenses; the service of papers in actions etc.; they are connected with the administration of justice and not with the collection of the revenue. Sureties on an official bond are discharged when the duties and obligations of the office are essentially changed by statute and their risk increased. The imposition of new duties upon an officer does not change his office, but invests him with a new office. Error to Saginaw. Submitted April 29. Decided June 9. ASSUMPSIT on official bond. Defendants bring error. Benton Hanchett and Albert Trask for plaintiffs in error. Sureties are not liable upon an official bond for default in the performance of duties that do not properly belong to the office and were imposed after the bond was given, Pybus v. Gibb 88 E. C. L. 902; U. S. v. Kirkpatrick 9 Wheat. 720; People v. Moon 3 Scam. 123; Reynolds v. Hall 1 Scam. 35; Compher v. People 12 Ill. 290; Governor v. Ridgway id. 14; State v. Robards 7 Rep. 594; Brandt on Suretyship §§ 469, 483. Timothy E. Tarsney for defendant in error. Illegality of a tax is no defense to an action against the collector and the sureties on his bond, on refusing to pay over, Sandwich v. Fish 2 Gray 298; Great Barrington v. Austin 43 567 74 134 74 139 |
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