7 Wend. 68 | N.Y. Sup. Ct. | 1831
By the Court,
The execution of the note which was the foundation of the plaintiff’s recovery, I think was not, under the crcumstances of the case, sufficiently proved. Proof of the hand-writing of the subscribing witness was nothing, without shewing that the witness himself could not be produced. No account whatever was given of the subscribing witness; the proof of the note, therefore, rests entirely upon the evidence of the defendant’s admission of it. This evidence shows that the defendant’s wife was authorised to give, and had given two notes to Buckbee, but it does not identify the note in question as one of those notes, as was said by the court in Shower v. Ehle, 16 Johns. R. 202. The note produced, may have been a forgery, and the genuine note still outstanding, which the defendant may hereafter be compelled to pay. The admission is not more definite that in Shower v. Ehle. It is true the amount of the note was mentioned in this case, but then the admission must be construed to mean that the note was to be given for the defendant, and in his name. The note produced was not in the defendant’s name, but in the name of his wife, her name alone being subscribed to it, and without purporting to be given for, or by the authority of the defendant. The question as to the identity of the note ought at least to have been submitted to the jury. 2 Johns. R. 452. 13 id. 75.
But admitting the note to have been duly proved, I do not see how the plaintiff can recover upon it, under the pleadings and evidence in this case. If it is to be considered a special contract, and not a negotiable promissory note, then the action should have been in the name of Buckbee, to whom it was given. But whether a special contract, or a promissory note, it was not so executed as to bind the defendant. It was signed with the name of the wife, without any reference whatever, either in the body or signature, to the defendant, and without purporting to be signed by her as the agent of, or on behalf of her husband. Nothing but proof of a special authority from the husband to the wife to sign in that manner would make the in
If it was not the note of the defendant, it was not admissible as evidence under the common count. If the consideration for which it was given accrued to the benefit of the defendant, he may be made resposible in a special action, upon the original consideration, and in no other manner, unless the evidence can be materially varied.
Judgment reversed.
