Binney v. Globe Nat. Bank

• Citation: 150 Mass. 574,23 N.E. 380
• Parties: BINNEY v. GLOBE NAT. BANK et al.
• Decision Date: 04 January 1890
• Court: United States State Supreme Judicial Court of Massachusetts

150 Mass. 574

23 N.E. 380

BINNEY v. GLOBE NAT. BANK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1890

COUNSEL

J.D. Ball, for plaintiff.

L.L Scaife and B.G. Davis, for defendant.

OPINION

DEVENS J.

The petition in the case at bar is addressed to the supervisory jurisdiction of this court of all cases arising under the insolvent law, which may, "except when special provision is otherwise made upon the bill, petition, or other proper process of any party aggrieved, hear and determine the case as a court of equity." Pub.St. c. 157, § 15. While the language used is broad enough to include all questions of fact as well as of law, and while, in the exercise of this jurisdiction, the court is not limited to the evidence which was before the court of insolvency, but may hear and pass upon other evidence, the application of the party invoking the interference of this court does not bring before it the whole case, but only those points in which she alleged herself to have been aggrieved. Lancaster v. Choate, 5 Allen, 530.

The first complaint of the plaintiff is that the alleged notes produced by the petitioning creditors, the Globe National Bank and the National Bank of the Republic, were not valid claims against her. At the trial before a single judge of this court, in order to prove the invalidity of these notes she offered the testimony of George H. Binney, her husband which was objected to by the defendants. While the evidence was received in order that the case might be fully reported, should either party desire to appeal, the presiding judge did not find it necessary to pass upon the admissibility of this testimony, as he was of opinion that, if admissible and fully considered, the bill should still be dismissed. Without discussing the admissibility of this testimony, it showed that the plaintiff indorsed these so-called "notes" held by the two banks on printed blank forms of notes, which contained nothing but the printed words which appear by the exhibits produced; that she did so at the request of her husband, who took them, and afterwards, not in her presence, filled up the blanks, and negotiated them for value to the two banks, who discounted them, and were bona fide holders thereof; that she received directly no consideration for them, although the proceeds were used, to some extent, for the support of herself and family; and that she never saw them after she gave them to her husband. It further appeared, by the testimony of her husband, that she knew "that these notes were to be filled up and used" by him. Upon a state of facts similar to this, an indorsee who receives such a note for value, before maturity, or who discounts it for value after it has been filled up by one to whom it has been intrusted, with authority thus to fill up and use it, may ordinarily hold the indorser responsible. Such an instrument, intrusted to the custody of another for use, would make, as between the indorser and an innocent third party, that other the agent of the indorser; nor can it be important whether the filling up is done in the presence of the indorser or subsequently, if then done by his authority. In either case, it is his own act, although done by the hand of another, and he is bound by it. Bank v. Kimball, 10 Cush. 373. Nor is the liability of the plaintiff affected by the fact that she is the wife of the signer of the note, who filled the blanks therein, and caused the same to be discounted, receiving the proceeds thereof. While a promissory note between husband and wife is void between the original parties, an indorser, when sued upon a contract between him and his indorsee, is not at liberty to deny the validity of the original note, or the capacity of the maker, for the purpose of defeating his or her own liability. The consideration moving from the party who takes the note with the signatures of the maker, and of the indorser, is sufficient to support the promise of the latter, and the fact that the indorsement is for the accommodation of the maker affords no defense to the indorser. Kenworthy v. Sawyer, 125 Mass. 28, and cases cited. The authority given to a married woman to make contracts as if she were sole, not only as to her separate property, but of every kind, with any one except her husband, (Pub.St. c. 147, § 2,) authorizes her to act, when she sees fit to do so, by an agent. The husband may be authorized to act for her as agent, as well as any other person; and, within the authority thus given him, his acts would bind her as if she acted in person. Coolidge v. Smith, 129 Mass. 554; Arnold v. Spurr, 130 Mass. 347; Wheaton v. Trimble, 145 Mass. 345, 14 N.E. 104; Frank v. Lilienfeld, 33 Grat. 377.

The contention of the plaintiff that these blanks were a gift to the husband or that her signature was a gift to him, which was a nullity, cannot be maintained. So far as the blanks are to be treated as mere pieces of paper, it would seem that they were the property of the husband, according to the evidence. It is in the power of the wife, also, if she chooses, to give her signature for the benefit of her husband. It has been held, under St.1874, c. 184, that a promissory note made by a married woman, jointly with her husband, the only consideration being a debt due from him to the payee, would bind her. Major v. Holmes, 124 Mass. 108. In Roby v. Phelon, 118 Mass. 541, it was held that, the husband and wife being incompetent to contract with each other, a note made by her to him was, as between them, wholly void, and his indorsement of it to the plaintiffs could not make it binding upon her, although it might estop him to deny its validity in an action by the indorsees against him. In the case at bar, the wife is in the position of indorser. The note has been transferred to the holders, with her consent, for value; and she cannot deny its validity, as against them. Even assuming, then, but without intending so to decide, that the evidence offered by the plaintiff was admissible, proof that the notes, when signed by the plaintiff, contained unfilled blanks, would not, under the other circumstances proved, invalidate them in the hands of the banks.

When the original insolvent law was passed, rendering a person whose goods or estate were attached, liable, in a certain class of cases, to be proceeded against in insolvency, if no bond to dissolve the attachment was given, a married woman...