Gould v. Gould, 35 N.J. Eq. 37

Gould v. Gould

35 N.J. Eq. 37 | New York Court of Chancery | 1882

The Chancellor.

The bill is filed by Emma R. Gould, widow of Joseph Gould, deceased, and her mother, Jeannette Devine, against Charles J. and George Gould, surviving partners of the late firm of Joseph Gould & Sons, of the.city of New York. That firm was composed of the defendants and Joseph Gould, before men*38tioned. The object^of the suit is to obtain repayment of a loan of $650, made by Mrs. Gould to the firm, at the solicitation of her husband, on the 1st of May, 1876. The bill charges that the money lent was part of certain money obtained by her from the mortgage of real estate belonging to her, and conveyed to her before her marriage. It appears to have been deposited by her in a savings bank, to the account of “ Mrs. Emma R. Gould, for Mrs. Jeannette Devine,” and hence the latter is joined as complainant, as oes tui que trust, with the former as her trustee. The money was borrowed by Joseph Gould, for the firm, and a written obligation of the firm, payable to the order of Mrs. Gould, was given by him to her therefor, at the time. After his death, she brought suit at law against the defendants in this suit, his surviving partners, upon the obligation, but was nonsuited, on the ground that the contract was made by her with her husband. A wife may maintain a suit in equity against her husband on a contract made by him with her, in reference to her separate estate. While this proposition is not denied by the defendants, they insist that inasmuch as the contract in question was made by the husband, and therefore is void at law, equity will not enforce it against his surviving partners, unless it ap*39pears that the money was not only borrowed by him on the credit of the firm, but actually reached the firm, or was expended in its business, or for its benefit, or on its behalf. The bill is sufficient in its averments. It states that Joseph Gould applied to his wife to borrow the money for his firm, and on the security of the firm’s obligation to be given to her therefor, and that she, being satisfied of the responsibility of the firm, was willing to lend the money, if she could safely do so, and therefore consulted counsel on the subject, and was by him advised that she could make a legal contract with the firm through her husband, and that a negotiable instrument made by him, in the name of the firm, would bind all the partners, and she thereupon lent the money accordingly. In the statement of pretences it is said that the defendants allege that she lent the money, not to the firm, but, in fact, to her husband, and that he, with her knowledge, applied it to his own use, and not to the use of the firm ; but the complainants deny that this allegation is true, and aver that she refused to lend the money to him for his own use, but lent it to the firm, and only consented to lend it to them on the advice of counsel, as before mentioned, and they further say *40that if he did not use the money for the firm, but applied it to his own use, the complainants did not know it. The substance of all which is, that the money was, in good faith, lent by her to the firm, and was not in any way lent to her husband, individually. In the statements of the bill, the transaction in question appears to have been in good faith. Equity will impose no condition to recovery in such a case as this, which the law would not impose were the suit maintainable there. The demurrer will be overruled.