Middleborough National Bank v. Cole, 191 Mass. 168

Middleborough National Bank v. Cole

191 Mass. 168 | Mass. | 1906

Knowlton, C. J.

The note in suit was made by a partnership, of which the defendant’s husband was the business manager, and was payable to the order of her husband. He indorsed it while holding it for the partnership, and procured the indorsement of the defendant, his wife, under his own. He then negotiated it for the partnership to the plaintiff bank. The defendant thus became an accommodation indorser of the note, and by R. L. c. 73, §§ 82, 83, she warranted to the plaintiff, as a holder in due course, that the instrument was genuine, and in all respects what it purported to be; that she had a good title to it; that all prior parties had capacity to contract, and that the instrument was, at the time of her indorsement, valid and subsisting. This contract between her and the plaintiff was not affected by the fact that she was a married woman, for she might contract with others than her husband as if she were sole.

*170Before the enactment of the negotiable instruments act she would have been bound in the same way. As between her and a subsequent holder, it would have made no difference if the indorsement from her husband to her was void. A promissory note made' by a husband to his wife is void, and cannot be enforced against the husband by any subsequent holder of it. National Bank of Republic v. Delano, 185 Mass. 424, and cases there cited. But if the wife indorses it to a holder in due course, she is bound by her contract of indorsement, and may be compelled to pay it. Binney v. Globe National Bank, 150 Mass. 574, 578. Kenworthy v. Sawyer, 125 Mass. 28. Foster v. Leach, 160 Mass. 418.

The case of National Bank of Republic v. Delano, above cited, contains nothing adverse to the plaintiff in this action. In that case the action was upon a contract made by a wife with her husband, as the payee and owner of a note which she indorsed for his benefit, which contract was void. In the present case the action is upon a contract made by a married woman with a third person, which is binding upon her.

Judgment affirmed.