Caldwell v. Nash

• Decision Date: 01 March 1906
• Citation: 77 N.E. 515,190 Mass. 507
• Parties: CALDWELL v. NASH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 507

77 N.E. 515

CALDWELL v. NASH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1906

COUNSEL

W. C. Cogswell, for plaintiff.

Charles P. Greenough and Julian Codman, for respondents.

OPINION

KNOWLTON, C.J.

The first of these cases is a suit in equity, under Rev. Laws, c 163, § 17, to set aside a decree of the court of insolvency expunging the proof of a claim of the plaintiff, which previously had been allowed against the insolvent estate of her husband, Henry L. Caldwell. This claim was founded on three promissory notes made by the debtor, payable to the order of his son Henry L. Caldwell, Jr., and by him indorsed to the plaintiff. These notes were never filed in the court of insolvency, but were referred to in the affidavit of the plaintiff on which they were proved as being attached to a proof of a claim against the estate of Henry L. Caldwell Jr., and the testimony of the assignees was that they never saw them until the hearing of this case in the Supreme Judicial Court.

The evidence tended to show that these notes were given by the debtor to his wife, for money borrowed of her by him. They were said to represent an account for borrowed money which appeared upon his books, and there was no evidence that Henry L. Caldwell, Jr., had any relation to the transactions except to put his name upon the back of the notes. If these notes, with the indorsements upon them, were given by the debtor to his wife for borrowed money, they were void. A husband cannot make a contract of this kind with his wife. Roby v. Phelon, 118 Mass. 541; Fowle v. Torrey, 135 Mass. 87; National Granite Bank v. Whicher, 173 Mass. 517, 53 N.E. 1004, 73 Am. St. Rep. 317; National Granite Bank v. Tyndale, 176 Mass. 547, 57 N.E. 1022, 51 L. R. A. 447; Woodward v. Spurr, 141 Mass. 283, 6 N.E. 521; National Bank of the Republic v. Delano, 185 Mass. 424, 70 N.E. 444. The indorsement of the son, Henry L. Caldwell, Jr., appears to have been merely for accommodation, and does not affect the validity of the notes between the maker and his wife to whom they were delivered in consideration of money lent. The case is not like Spooner v. Spooner, 155 Mass. 52, 28 N.E. 1121, where the note was made and delivered as a valid contract with a third person, upon a consideration moving from the wife. The evidence does not show an equitable liability on the part of the debtor which was provable against his estate. There was simply an attempt of husband and wife to contract with each other, which cannot be effectual, either at law or in equity. Fowle v. Torrey, 135 Mass. 87; Woodward v. Spurr, 141 Mass. 283, 6 N.E. 521; National Bank v. Tyndale, 176 Mass. 547, 57 N.E. 1022, 51 L. R. A. 447. It seems plain that the original proof was erroneous, and that it was properly expunged, unless the court had lost its power to grant the petition by reason of the lapse of time. The authority to expunge such a proof is given in broad terms, without limitation of time. Pub. St. 1882, c. 157, § 35; Rev. Laws, c. 163, § 44. Section 154, Rev. Laws, c. 163, expressly makes this authority applicable to cases of composition. General authority to make orders in cases of composition is also very broad, and is unlimited in time. St. 1884, c. 236, § 12; Rev. Laws, c. 163, § 167.

The conditions had not so changed after the erroneous proof as to make the proof immaterial. By a peculiar and unusual provision in the offer of composition, which was confirmed by the court, the assets of the debtor were to...