Kenworthy v. Sawyer, 125 Mass. 28

Kenworthy v. Sawyer

125 Mass. 28 | Mass. | 1878

Gray, C. J.

By the St. of 1874, c. 184, a married woman r‘may make contracts, oral and written, sealed and unsealed, in *29the same manner as if she were sole,” and “ may sue and be sued in the same manner and to the same extent as if she were sole” —with this restriction only, that nothing in this act contained shall authorize a married woman to make contracts with her husband, or authorize suits between husband and wife.

This statute does not, like the Gen. Sts. c. 108, § 3, restrict the capacity of a married woman to make contracts, and to sue and be sued, to matters in reference to her separate property, business or earnings, but enables her to make and to be sued upon contracts of every kind with any one but her husband, as if she were unmarried. Major v. Holmes, 124 Mass. 108.

A promissory note, like any other contract, between husband and wife, or between a wife and a partnership of which her husband is a member, is void as between the original parties. Jackson v. Parks, 10 Cush. 550. Lord v. Parker, 3 Allen, 127. Edwards v. Stevens, 3 Allen, 315. A promissory note, therefore, made by a husband, or by a partnership of which he is a member, to his wife, or by a wife to her husband, will not sustain an action against the maker, either by the payee or by an indorsee. Ingham v. White, 4 Allen, 412. Roby v. Phelon, 118 Mass. 541.

But an indorser, when sued upon the contract between him and his indorsee, is not at liberty to deny the validity of the original note, or the capacity of the maker, for the purpose of defeating his own liability. Burrill v. Smith, 7 Pick. 291, 295. State Bank v. Fearing, 16 Pick. 533. Prescott Bank v. Caverly, 7 Gray, 217. Erwin v. Downs, 15 N. T. 575. As Lord Hardwicke long ago said, “ Though e, note given by a wife to a husband is void, yet if it is indorsed over by the husband, as between him and the indorsee it is certainly good.” Haly v. Lane, 2 Atk. 181. Since the St. of 1874 took effect, a promissory note made by a married woman to her husband, and indorsed by him, is governed by the same rules. And see Knight v. Thayer, ante, 25.

The consideration moving from the party who takes the note with the signatures of the maker and of the indorser is sufficient to support the promise of the latter, and the fact that the indorsement is for the accommodation of the maker affords no defence to the indorser. Violett v. Patton, 5 Cranch, 142. Yeaton *30v. Bank of Alexandria, 5 Cranch, 49, 53. Brown v. Mott, 7 Johns. 361.

The agreement made by the plaintiffs with one of the makers, upon receiving payment of part of the note, did not discharge the indorser; because it was not a technical release, but a mere covenant not to sue ; and because it expressly reserved all rights against the indorser and the joint promisor. Perkins v. Gilman 8 Pick. 229. Schier v. Loring, 6 Cush. 537.

It follows that the defendant, though a married woman, yet, having capacity under the St. of 1874 to make the contract with the plaintiffs upon which this action is brought, is liable to them for that part of the note which has not been paid.

Judgment for the plaintiffs accordingly.