7 N.Y.S. 520 | N.Y. Sup. Ct. | 1889
The complaint alleges that the defendant, Catherine Sniffen, made her certain promissory notes in 1887 and 1888 in writing, and copies of such notes are set forth therein. Each of said notes was in the same form, but they varied in amount. The form was as follows:
“Four months after date I promise to pay to the order of John Sniffen $2,500, at the Bowery national Bank, value received.
“Catherine Sniffen.”
The plaintiff alleged that the defendant delivered the said notes to the payee, who thereafter, and before maturity, indorsed the said notes, and for value delivered the same to the plaintiff. The defendant set up that at the time of the making and delivery of the said notes to Sniffen, the payee thereof, the defendant was a married woman, and the wife of said Sniffen, the payee of said notes, and that the same were made and delivered without consideration. The only evidence offered at the trial were the notes, and the testimony of the cashier of the defendant that they were presented for discount by John Sniffen, and discounted for him, and credit given therefor to him in his account with the bank; and it was admitted that the defendant was a married
The plaintiff is undoubtedly a bona fide holder of the notes in question, having paid full value therefor to the payee. But notwithstanding this fact, as the law stood prior to the enactment of chapter 381 of the laws of 1884, no right of recovery existed. In the case of Bank v. Miller, 63 N. Y. 639, it was definitely held that where a married woman had made certain notes payable to the order of her husband, which were presented by him for discount to the plaintiff, the notes were nullities, and no implication, presumption, or impression that she was to be benefited by them in her business or estate could be drawn from their form, or from the fact that she had given them to her husband for the purpose of having them discounted, but that, in order to charge her, it must be made to appear by evidence aliunde the instrument that they were in fact made in her separate business, or for the benefit of her separate estate. This same rule was laid down in Bank v. Pruyn, 90 N. Y. 250. The question then presented is whether the enactment of chapter 381 of the Laws of 1884 has made any change in the law which will support a recovery upon the part of the plaintiff. The statute is as follows: “Section 1. A married woman may contract to the same extent, with the like effect and in the same form, as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary.” It is clear that by this section the rules laid down in the cases cited have been abolished, except so far as relate to the next section, to which attention will be hereafter called; and that it is no longer necessary, in order to hold a married woman upon her contracts, to prove that the obligation was created by her in or about carrying on her trade or business, or that the contract relates to or is made for the benefit of her separate estate, or that the intention to charge her separate estate is expressed in the instrument by which the liability is created. The exception to which attention has been called is ■contained in section 2 of the act, which provides that this act shall not apply to any contract that shall be made between husband and wife. As already stated, unless the obligation which is the subject-matter of this suit is fauna to come within the restriction of the section last quoted, the plaintiff lias a right to recover. The notes in question were either given for value received by the maker, in which case they would have been given for the benefit of her separate estate, and she would be liable upon them within the principles laid down in Tiemeyer v. Turnquist, 85 N. Y. 521, or it was a loan of her credit by the wife to the husband. The cases already cited show that there is no presumption that the notes were given for value, and therefore it must be assumed that they were mere accommodation paper, and that they were a loan of her credit by the wife to the husband. If that is the case, then the notes were no contract between the husband and wife. There was no obligation which could be enforced by the husband against the wife. Where two parties execute an instrument without any intention of creating an obligation between them, there is no contract. An intention to contract is an essential element of every contract. Therefore^ if these were accommodation notes, there was no intention on the part of the maker to contract with the payee, and no intention on the part of either of the parties that any obligation, as between themselves, should be entered into because oE the giving of the notes. Although the ordinary rule is that a promissory note is a contract between the maker and the payee, yet, if the parties to the instrument intend differently, it is difficult to see how a contract can spring into existence when neither intended that the act done should result in a contract as between them.
It follows from this, then, that the making of this promissory note by the defendant, and the giving of it to her husband, was not the making of any