Athol Machine Co. v. Fuller

107 Mass. 437 | Mass. | 1871

Mobtoft, J.

The consideration of the note in suit was a debt due by the defendant’s husband to the plaintiffs, for which she was not liable. The fact that a previous note, signed by her and her husband, of which this note was á renewal, had been given does not affect the case. We must look to the original consideration, to see if this note was a contract in reference to her separate property within the meaning of the statute. Gen. Sts. c. 108, § 3. The facts present a case where she was a mere surety for her husband, without any consideration received by her, or any benefit to her separate estate. Such a promise cannot be held to be a contract in reference to her separate property. If it could, then every promise made by her must be so held, merely because it would otherwise be ineffectual. Mo case has gone to this length. On the contrary, the case of Willard v. Eastham, 15 Gray, 328, proceeds upon the ground that such a promise is wholly void at law. We have no doubt that the note in suit is invalid.

Judgment for the defendant.