Pierce v. Kittredge, 115 Mass. 374

115 Mass. 374 | Mass. | 1874

Ames, J.

It is fully settled by a long course of decisions that, except where otherwise provided by statute, an oral acceptance of a bill of exchange will bind the acceptor. Lumley v. Palmer, 2 Stra. 1000. Powell v. Monnier, 1 Atk. 611. Clarke v. Cock, 4 East, 57. Fisher v. Beckwith, 19 Vt. 31. Barnet v. Smith, 10 Fost. 256. Ward v. Allen, 2 Met. 53. Exchange Bank v. Rice, 98 Mass. 288. 3 Kent Com. (12th ed.) 83-6, and cases cited. In some of these decisions the courts express their regret that such a rule should have been established, but they all agree that it is too late to change it.

The defendant, although she was a married woman, had the same right under our statute (with certain limitations which do not affect this case) to enter into any contracts in reference to her separate property or business, as if she were unmarried. Gen. Sts. c. 108, § 3. She may not only incur obligations with regard to property which she already owns, but may bind herself by agreement for the acquisition of property to her separate use. Ames v. Foster, 3 Allen, 541. Chapman v. Foster, 6 Allen, 136. She may be the highest bidder at an auction sale of real estate, and bind herself to complete the purchase. Faucett v. Currier, 109 Mass. 79; S. C. ante, 20. Her note given in consideration of real estate conveyed to her separate use is binding upon her, Stewart v. Jenkins, 6 Allen, 300. If she should think fit to increase the value and productiveness of her land, by building upon it, she would have a right to do so, and would be bound by any contract she might make for labor or materials for that purpose. Stewart v. Jenkins, supra. The fact that her husband joined her in the contract would not enlarge his interest in the estate, or give him any new right in it. It would merely make him responsible with her for the payments that should become due, but the house would still be her house, built for her, on her land; and the contractor who had undertaken to build it would be employed in her business. Parker v. Kane, 4 Allen, 346. Morse v. Mason, 103 Mass. 560.

The proper implication from the statute is that as to her separate property and business she is virtually a feme sole, and may do whatever she could have done if she were unmarried. Basford v. Pearson, 7 Allen, 504. The general power to contract, conferred by the statute, includes the power to make all sub-contracts and incidental arrangements in reference to the general purpose. If she may pay her workmen by promissory notes, it is difficult to see why she may not pay them by accepting their drafts for lumber and materials. In so doing, she would contract “ in reference to her separate property or business,” within the meaning of the statute.

As to the objection founded upon the alleged want of consideration, her acceptance of the draft was not so much a promise to pay a preexisting debt of the contractors, as to pay her own debt to them by providing for their debt to the plaintiff. We must assume that the plaintiff relied upon her acceptance, and forbore to seek other remedies against the contractors, which of itself would constitute a sufficient consideration. Coolidge v. Payson, 2 Wheat. 66. But independently of this view of the case, if the order were given by the contractors, for a debt due from them, and the defendant accepted it at their request and for their accommodation, she would be bound by the acceptance, and could not object to it for want of consideration. Walker v. Sherman, 11 Met. 170. In re Babcock, 3 Story, 393. Grant v. Ellicott, 7 Wend. 227,

We must hold therefore that the draft was duly accepted, and that the defendant is bound by it, as a contract in reference tv her separate property and business. Exceptions sustained.