National Granite Bank v. Whicher

53 N.E. 1004, 173 Mass. 517, 1899 Mass. LEXIS 1137

Opinion

Lathrop, J.

This is an action on three promissory notes,

signed by the defendant, payable to the order of her husband, and by him together with other persons indorsed. That such a note is void by common law, which law has not been changed by our statutes relating to married women, is too plain for argument. Gay v. Kingsley, 11 Allen, 345. Nor does it make any difference that the note, after being indorsed by the husband, is given to a person in payment of a debt of hers to him. Roby v. Phelon, 118 Mass. 541.

In Slawson v. Loring, 5 Allen, 340, on which the plaintiff chiefly relies, it was held that an indorsement of a draft by a husband to his wife, and her subsequent indorsement of it with his assent to a third person, were sufficient to vest in the latter a valid title. This case, as an authority, has been limited to its particular facts. Speaking of it in Roby v. Phelon, it was said by Chief Justice Gray: “Unless the decision can be supported upon the ground that the wife acted only as the bus-band’s agent and as a mere conduit for passing the title to the indorsee, (as suggested in Gay v. Kingsley, cited above,) and thus stand as if the name of the wife as indorsee and indorser had been stricken out by the husband before he delivered the bill, leaving it indorsed by him to the subsequent indorsee, it is inconsistent with the earlier and later decisions of this court.” See Foster v. Leach, 160 Mass. 418.

We are of opinion, therefore, that the instruction requested — namely, that the notes in suit having been made by a wife payable to the order of her husband, no action could be maintained against her upon them — should have been given, and that the instructions given were wrong.

Exceptions sustained.