67 Mo. 411 | Mo. | 1878
This action was upon a note made November 17th, 1874, by the defendant to Mrs. Richardson, for $225, payable in two years after date. The suit was commenced in April, 1877. The note was credited with $25, paid November 25th, 1876. The answer admits the execution of the note, and that payment was made on it of the $25, but sets up the following defense : “Further answering, defendant says that the plaintiffs ought not to have and maintain their said supposed cause of action in the form alleged against defendant, for defendant says that plaintiff, J. H. Richardson, on the 31st day of October, 1876, became and was, and is now indebted to the defendant in the sum of $148.20, on a debt theretofore owing by said plaintiff, J. H. Richardson, to one Nancy E. Madding, widow and executrix of William Madding, deceased, on account of a note executed in October, 1872, to one John Madding, (as agent of William Madding, deceased,) in lieu of and for moneys theretofore collected by said J. IT. Richardson for said William Madding, and appropriated by said Richardson to his own use, and which note so executed by said Richardson was the property of said William Madding, now deceased, and by him lost or destroyed prior to October 31st, 1876, and which debt evidenced by
“Defendant says that the consideration for the note sued on was wholly and separately furnished by said J. H. Richardson, being for property belonging to said J. H. Richardson, and from him purchased by defendant, and that said note was at the request and instance of said J. H. Richardson, drawn in favor of his said wife ; but defendant says that said note belongs to and is the property of said J. H. Richardson, and that plaintiffs’ petition fails to disclose that said Fannie Richardson is in any way the meritorious cause of the action. And defendant says that the said debt assigned to him and which he here offers to set off, was contracted by and the liability had attached to the said J. H. Richardson, before the date and execution of the note sued on.” The plaintiff moved to strike out all of this answer contained in the first paragraph and the last sentence in the second paragraph. This motion was sustained, and the defendant refusing further to amend, and a jury being waived, the court found a verdict for the plaintiffs, and the judgment was for plaintiffs.
As this note was not due until November, 1876, the act of March 25th, 1875, protected it from the debts of the husband. It seems to be claimed by the plea in the defense of this action that this act did not protect a note given to the wife, where the consideration moved from the
Akeirmed.