60 N.J.L. 389 | N.J. | 1897
The opinion of the court was delivered by
This is an action on a promissory note made by the defendant to the plaintiffs. The defence pleaded was that the defendant’s contract with the plaintiffs was that of surety for her husband, the joint maker. Coverture was
The transaction was this: Crevier and his wife (who is now his widow) had made a mortgage to the plaintiffs to secure $24,000 upon lands of Crevier. This mortgage was discharged and canceled upon the delivery by Crevier to the plaintiffs of a second mortgage, made by Mr. and Mrs. Crevier on other property for $7,000, a check drawn by Mrs. Crevier alone for $12,000 and the note in suit for $5,000 made by the defendant and her husband. The effect was to extinguish the plaintiffs’ mortgage, and that in turn freed the defendant’s inchoate right of dower and hence was a benefit to her. Perkins v. Elliott, 8 C. E. Gr. 526.
The defendant does not deny that this was the purpose for which the note was given by her husband to the plaintiffs, and, of course, cannot deny the legal result above stated. The defence lies wholly in the circumstance, stated by the defendant, that when her husband came to her with the note in question, saying, “ I would like you to sign that,” she did so without getting “any part of the five thousand dollars represented by the note,” about which she “asked nothing and knew nothing else.”
The assumption that this constitutes any defence ignores, as it seems to me, the doctrine established by the case just cited; while it certainly does not tend, in the remotest degree, to sustain the defendant’s plea, viz., that she made a contract of suretyship from which her estate received no benefit. If any effect could be given to the isolated fact of which the defence eonsists, it would be that she had made no contract at all. This, however, would wipe out the law of agency. The case shows beyond any question that the husband of the defendant was attending to the business out of which this transaction grew, and that while she was not per
In my opinion, the case shows á contract within the defendant’s capacity to make, and that she did make it; and further, that her reasons for making it and her relations to the agency she selected in making it are possessed of no legal significance.
The rule to show cause should be discharged.