Roby v. Phelon

Massachusetts Supreme Judicial Court

Roby v. Phelon

118 Mass. 541, 1875 Mass. LEXIS 428

CourtMassachusetts Supreme Judicial Court

DecidedOctober 22, 1875

StatusPublished

Cited by20 cases

This text of 118 Mass. 541 (Roby v. Phelon) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Roby v. Phelon, 118 Mass. 541, 1875 Mass. LEXIS 428 (Mass. 1875).

Pincite

Opinion

Gray, C. J.

This action is against a married woman upon a promissory note made by her payable to her husband’s order, and by him indorsed to the plaintiffs.

It was argued that, being made payable to his order, it was not a complete promissory note until indorsed by him. That would be true of a note payable to the maker’s own order. Wood v. Mytton, 10 Q. B. 805. Brown v. De Winton, 6 C. B. 336. Pitcher v. Barrows, 17 Pick. 361, 363. Little v. Rogers, 1 Met. 108. But it has long been settled that a bill or note of another person, payable to a man’s order, is payable immediately to him. Anon. Comb. 401. Fisher v. Pomfret, 12 Mod. 125; S. C. Carth. 403. v. Ormston, 10 Mod. 286. Huling v. Hugg, 1 W. & S. 418.

The husband and wife being incompetent to contract with each other, the note made by her to him was, as between them, wholly void, and his indorsement of it to the plaintiffs could not make it binding upon her, although it might estop him to deny its validity in an action against him by the indorsees. Haly v. Lane, 2 Atk. 181. Ingham v. White, 4 Allen, 412. Turner v. Nye, 7 Allen, 176. Gay v. Kingsley, 11 Allen, 345. Chapman v. Kellogg, 102 Mass. 246.

The case of Slawson v. Loring, 5 Allen, 340, on which the plaintiffs principally rely, was of a bill drawn by a third person, payable to the husband, and indorsed by him to his wife, and by her by his direction to another person for the convenience of the plaintiff, who, knowing all the facts, took the draft from the husband himself, and was allowed to maintain an action upon- it against the acceptor. Unless the decision can be supported upon the ground that the wife acted only as the husband’s agent and as a mere conduit for passing the title to the indorsee, (as suggested in Gay v. Kingsley, above cited,) and thus stand as if the name of the wife as indorsee and indorser had been stricken out [543]*543by the husband before he delivered the bill, leaving it indorsed by him to the subsequent indorsee, it is inconsistent with the earlier and the later decisions of this court.

Exceptions overruled.

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Gray, C. J.

This action is against a married woman upon a promissory note made by her payable to her husband’s order, and by him indorsed to the plaintiffs.

It was argued that, being made payable to his order, it was not a complete promissory note until indorsed by him. That would be true of a note payable to the maker’s own order. Wood v. Mytton, 10 Q. B. 805. Brown v. De Winton, 6 C. B. 336. Pitcher v. Barrows, 17 Pick. 361, 363. Little v. Rogers, 1 Met. 108. But it has long been settled that a bill or note of another person, payable to a man’s order, is payable immediately to him. Anon. Comb. 401. Fisher v. Pomfret, 12 Mod. 125; S. C. Carth. 403. v. Ormston, 10 Mod. 286. Huling v. Hugg, 1 W. & S. 418.

The husband and wife being incompetent to contract with each other, the note made by her to him was, as between them, wholly void, and his indorsement of it to the plaintiffs could not make it binding upon her, although it might estop him to deny its validity in an action against him by the indorsees. Haly v. Lane, 2 Atk. 181. Ingham v. White, 4 Allen, 412. Turner v. Nye, 7 Allen, 176. Gay v. Kingsley, 11 Allen, 345. Chapman v. Kellogg, 102 Mass. 246.

The case of Slawson v. Loring, 5 Allen, 340, on which the plaintiffs principally rely, was of a bill drawn by a third person, payable to the husband, and indorsed by him to his wife, and by her by his direction to another person for the convenience of the plaintiff, who, knowing all the facts, took the draft from the husband himself, and was allowed to maintain an action upon- it against the acceptor. Unless the decision can be supported upon the ground that the wife acted only as the husband’s agent and as a mere conduit for passing the title to the indorsee, (as suggested in Gay v. Kingsley, above cited,) and thus stand as if the name of the wife as indorsee and indorser had been stricken out [543]*543by the husband before he delivered the bill, leaving it indorsed by him to the subsequent indorsee, it is inconsistent with the earlier and the later decisions of this court.

Exceptions overruled.

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Bluebook (online)

118 Mass. 541, 1875 Mass. LEXIS 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roby-v-phelon-mass-1875.

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