163 Mass. 255 | Mass. | 1895
But for Pub. Sts. c. 147, § 11, Mrs. Carson alone would have been liable to pay for the goods sold to her, as they were sold on her sole credit. See § 10. By the eleventh section the husband is made liable if the certificate required by
The first and second counts are upon the note given on June 1, 1891, signed by both the husband and wife, and payable to the order of the husband and by him indorsed in blank to the plaintiffs. The facts found by the court, that no demand was made on the makers at the maturity of the note and no notice of non-payment given to the defendant as indorser, prevent the plaintiffs from recovering against the defendant on the second count, which is against him as indorser of the note.
The first count is against the defendant as maker of the note given June 1, 1891. Whether this note was given as absolute payment of the account and of the notes then unpaid, or as con
The court found that at the date of the writ there remained unpaid on the note declared on $627.23, and on the account declared on $835.64, making a total of $1,462.87; that deducting the amount received by the plaintiffs from Mrs. Carson’s estate in insolvency, viz. $365.29, there was left a balance of $1,097.58, which with interest up to the day of the finding amounted to $1,170.38; and that this amount was due to the plaintiffs from the defendant. We understand that the plaintiffs proved against Mrs. Carson’s estate in insolvency their whole account for which both notes were given. Whether a proof in this form ought to have been allowed is a question not before us. The amount received from her estate in insolvency must be regarded as received pro rata in part payment of the debt for which the note declared on was given as well as of the account declared on. To this extent the amount apparently due on the note should be reduced, and there should be a finding for the remainder, with interest from the date of the writ. On this bill of exceptions the only order we can make is that the exceptions be sustained; but this does not render it necessary that the special findings of fact by the court should be set aside, although the ultimate finding of the amount due must. be. The special findings of fact appear to have been made upon evidence to which no exceptions have been taken; and when the amount due on the note declared on in the first count is found, and the proper deduction made on account of the amount received from Mrs. Carson’s estate in insolvency, the whole amount of the damages recoverable by the plaintiffs will appear. There must be a new trial on the first count on the question of damages.
Exceptions sustained.