55 N.Y. 247 | NY | 1873
Evidence was given tending to show that the note in suit was given to Mrs. Abi A. Bemis, and that the consideration therefor was a note then held by her against the defendant, which he had theretofore given her upon the purchase by him from her of some interest in the estate of her father. Although evidence tending to show the contrary of this was given by the plaintiff, as the question was not submitted to and determined by the jury, we must assume the truth of the former for the purpose of determining whether the rulings of the judge excepted to were correct. The note was presently due when given. Upon the assumption that it was then the property of Mrs. Bemis and a part of her separate estate, the defendant had a right to avail himself of any legal set-off which he then had against Mrs. Bemis, or counter-claim any demand which he had against her arising upon contract. (Code, § 150.)
The defendant in his answer, as a defence to the note, set forth in substance that the same was given by him to Mrs. Bemis in renewal of a note by him previously given to her upon the purchase by him from her of an interest in the estate of their father. That she was a married woman having a separate estate, consisting of real and personal property. That, having such separate estate, she applied to him to board her and her husband, and that she promised him that if he would board them she would pay him therefor, and that her separate estate should be charged with such payment. That he, confiding in such promise, did board them for upwards of a year, which was worth upwards of $400 (which board, it appears, was had prior to the giving of the note in suit), and avers that neither that amount, nor any part of it, had ever been paid to the defendant, and which he claimed to set-off against the note in suit. Upon the trial the defendant offered to prove *249 these facts, which was rejected, and the defendant excepted. As the note was given by the defendant to Mrs. Bemis after the demand of the defendant for board had accrued, this was presumptive evidence of settlement and payment of all previous demands he had against her, but this presumption would have been overcome by the proof offered that the demand for board, and no part thereof, had been paid. The note, being the property of Mrs. Bemis when it became due, was subject to the same defence at the suit of a subsequent transferree that it would have been as against her. The question, therefore, is whether this demand for board would have been a legal or equitable set-off in an action brought by her upon the note. As I understand from the opinion delivered in the Supreme Court, it was held that it could not have been so set off for the reason that she was to be regarded as surety for her husband for this demand. It was therein correctly stated that the husband is liable for his own maintenance and that of his wife, and this liability is not affected by the fact that she has a separate estate. This fact imposes no obligation upon her to provide for herself. If she undertook to pay for the board as the surety of her husband her contract would have been void by the statute of frauds, which provides, among other things, in substance that every contract to answer for the debt, etc., of another shall be void, unless made in writing and signed by the party to be charged. But her contract was not as surety for her husband. From the proof offered it appears that she requested the defendant to board herself and husband, and promised that she would pay for such board and would charge her separate estate with the payment therefor, and that the board was furnished by the defendant in reliance upon this promise. Laying for the present the coverture of Mrs. Bemis out of view, this was clearly a contract by her as principal and not as surety for her husband. If he boarded with the defendant with her, under this contract, the credit was given to her and to her separate estate, and not at all to him, and he would not become debtor to the defendant therefor. The law would not imply a *250 promise by him to pay for the board when it was shown that it was furnished at the request of and upon the credit of his wife, and of her separate estate.
Yale v. Dederer (
All concur, except ALLEN, J., not voting.
Judgment reversed.