dissenting. I cannot concur in this opinion. In reference to the note presented by the National Bank of Spartanburg, the Circuit Judge found that “the bank dealt with it as belonging to him (the husband). After paying the debts due to the bank, the balance was paid to him without . any authority from the plaintiff. ' There was surely enough in these circumstances to put the bank on inquiry as to her having *488made the note for her own benefit, or as surety for her husband. The declaration in the note of her purpose to charge her separate estate is not sufficient to bind her,” &c. I do not think this statement is in exact conformity with the testimony, taken as a whole. The loan was certainly made at the instance of Mrs. Gwynn alone, her husband not being considered in the transaction. She made several visits to the bank, and personally urged the officers to lend her the money. They at last yielded, and the president drew' the note, which she signed, with the statement, as a part of it, that “this note is made with reference to my separate property, and is intended to be a charge upon the same.” I cannot avoid the conclusion of fact, that the loan was made alone to Mrs. Gwynn, upon the faith of the securities given by her, and for and in behalf of herself alone; that the money became her money, and would most probably have been paid into her own hands, but for the form of the note, which being drawn according to bank usage, made it necessary for the husband, nominal payee, to put his name upon the back before it was delivered to the bank. Most clearly it was not his note, but that of his wife.
If I am not mistaken in this, and I think the whole transaction shows that I am not, then, as to the borrowing, the case only differs from that of Greig & Matthews v. Smith in the single particular, that in that case the papers themselves directed the party making the loan to pay the money to her husband as “her true and lawful attorney”; while in this, there is no such express direction in the papers themselves, but it was in proof that the husband was the agent of the wife, Mrs. Gw'ynn herself testifying that “Capt. Gwynn used my money as my agent in making investment and for other purposes; at that time we had only one purse,” &c. Besides, in this case there was a statement in the note of Mrs. Gwynn, that “it was made in reference to her separate property.” Was that not as strong a declaration, that the money was borrowed for her and her uses, as would have been a direction in the note that the money should be paid to her husband as her agent ? It seems to me it was at least as strong, if not stronger. In the case of Greig v. Smith, supra, it was well said: “But inasmuch as she (a married woman) has been invested with the power to contract with reference to her separate estate, *489her representations that a given debt is of that character will estop her from afterwards disputing that fact, unless it be shown that the creditor knew, at the time the debt was contracted, that such representation was not true; for in that case the creditor would not be misled, and there could, therefore, be no ground for the estoppel,” &c.
There can be no doubt that, in reference to this debt, such a representation was made in the note, and, therefore, the debtor, Mrs. Gwynn, should have been estopped froin disputing that fact, unless the creditor knew at the time that such representation was untrue. The matter was then reduced to a simple question of fact — knowledge or no knowledge. Did the creditor know that the statement in the note was untrue? If he had such knowledge, it would seem rather strange that he required the statement and acted on it. The Circuit Judge does not say in express terms that he had such knowledge, but that the circumstances were enough to put the bank on the inquiry. I rather incline to think that was not sufficient to satisfy the rule; but in order to have the effect of branding as false a positive representation, clear and full proof of actual knowledge was necessary. The officers of the bank knew that the money went into the hands of the husband as the nominal endorser; but did that furnish the knowledge, that the statement of the wife in the note before them was untrue? Can it be fairly said that the two things were so essentially contradictory, that the existence of one necessarily expunged the other■ — especially when the husband, A. J. Gwynn, was acting as the agent of his wife, in accordance with what is believed to be the general course in such cases ? The creditor knew that the loan was made to the wife alone, without the slightest reference to the husband.
As it seems to me, the officers of the bank were misled by the statement of the wife in the note, and that, in fact, they were not undeceived by the manner in which the money was paid out through the husband; and that, as a consequence, the wife should have been estopped from contradicting her owTn statement in the note, upon the faith of which alone she was enabled to secure the accommodation. As Mr. Cooley, with his usual discrimination, says: “Where a representation is made of facts which are within *490the knowledge of the party making it, the knowledge of the receiving party concerning the real facts, which shall prevent his relying on and being misled by it, must be clearly and conclusively established by the evidence. The mere existence of opportunities for examination is not sufficient. * * * A positive representation of fact cannot be obviated by any general statement of the party making it, or by any extrinsic circumstances, which merely admit of, or warrant, an inference contrary to the representation, even though, of themselves, such statements or circumstances might be sufficient to put the other party upon the inquiry. This is simply another application of the principle, that the right of a party receiving a representation to rely upon it, cannot be taken away or interfered with by inference or implication,” &c. See 2 Pom. Eq. Jur., sections 895, 896, and authorities in the notes.
I think the judgment should be reversed, and a new trial ordered.
Judgment affirmed.