National Bank of the Republic v. Delano

70 N.E. 444, 185 Mass. 424, 1904 Mass. LEXIS 837

• Court: Massachusetts Supreme Judicial Court
• Decided: April 1, 1904
• Status: Published

Opinion

Knowlton, C. J.

The exceptions in this case relate to five of the sixteen promissory notes on which the suit was brought. These notes, bearing date November 13, 1897, were signed by C. R. Delano, were payable to the order of George S. Delano, and on the back of each appeared the following indorsements: “Mrs. Lizzie Delano. Pay only to order of the National Bank of the' Republic, Boston, Mass. Geo. S. Delano.” The payee and the defendant were husband and wife and the maker of the notes was their son. The notes were given by the son to the father in payment for a three eighths interest in his business, in connection with the formation of a partnership between them.

* According to the testimony of the defendant, she signed them before they were signed by her son. According to the testimony of her husband, she brought them to him with his son’s signature upon them, and gave them to him while he was eating his dinner, and he put them into his pocket and kept them until the meal was over, when he asked her to sign them and she immediately affixed her signature.

The exception is to the direction of a verdict for the defendant, on the ground that she was a joint maker of these notes running to her husband, and that her contract was void. If she signed before the notes were delivered and took effect as binding contracts, she was a joint maker under the law of Massachusetts in force when the notes were made. Union Bank v. Willis, 8 Met. 504. Bryant v. Eastman, 7 Cush. 111. Pearson v. Stoddard, 9 Gray, 199. Richardson v. Boynton, 12 Allen, 138. See R. L. c. 73, § 81. The St. 1874, c. 404 (Pub. Sts. c. 77, § 15), which required demand and notice to hold parties signing in that way, still left their promise that of joint makers. State Trust Co. v. Owen Paper Co. 162 Mass. 156, 160. Mulcare v. Welch, 160 Mass. 58. Legg v. Vinal, 165 Mass. 555. Brooks v. Stackpole, 168 Mass. 537. A promissory note made by a husband to his wife or by a wife to her husband is absolutely void, and the same rule applies to a contract of indorsement and to any other contract purporting to create a liability upon a note. Fowle v. Torrey, 135 Mass. 87, 93. Roby v. Phelon, 118 Mass. 541. Browning v. Carson, 163 Mass. 255. National Granite Co. v. Whicher, 173 Mass. 517.

0. 3. Sprague, for the plaintiff. J. B. Crawford, for the defendant.

These principles are sufficient to sustain the ruling and dispose of the case, unless the evidence of the husband that he had the notes in his possession a short time before the defendant signed them makes a difference. If her signing was in pursuance of a previous agreement, she would be a joint maker, even though the notes had taken effect before she signed. Hawkes v. Phillips, 7 Gray, 284. Moies v. Bird, 11 Mass. 436. If she signed after the notes had taken effect, her contract, whether of guaranty or of whatever kind that purported to create a legal obligation, was still a contract with her husband, made upon notes held by him as owner, and it was void, as it would have been if she had signed as a maker or indorser. Chapman v. Kellogg, 102 Mass. 246. Abbott v. Winchester, 105 Mass. 115. In every possible aspect of the evidence, the contract of the defendant which appears upon the note was a contract with her husband, and was therefore void.

Exceptions overruled.

Some of the facts in this case appeared in National Bank of the Republic v. Delano, 177 Mass. 362.