Emery v. Lord

• Decision Date: 17 January 1873
• Citation: 26 Mich. 431
• Court: Michigan Supreme Court
• Parties: Mary Emery v. Henry W. Lord

26 Mich. 431

Mary Emery v. Henry W. Lord

Supreme Court of Michigan

January 17, 1873

Submitted on Briefs January 15, 1873.

Error to Oakland circuit.

Judgment reversed, with costs, and a new trial awarded.

W. B Jackson, for plaintiff in error.

G. X M. Collier and Wisner & Draper, for defendant in error.

OPINION

Christiancy, Ch. J.

This was an action of assumpsit brought by defendant in error against the plaintiff in error, upon a promissory note made by her, she being at the time of its execution, and when the suit was brought, a married woman living with her husband.

The evidence as set forth in the bill of exceptions, so far as material to be stated, tended to show that she was the owner in her own right, of the "Northern Hotel" property, so called, in the city of Pontiac; that the plaintiff (below) had furnished lumber and other materials for building a barn upon the premises, and which were so used; but that he dealt entirely with the husband, and charged the whole amount--about eleven hundred dollars--upon his book, to the husband, at the time the materials were furnished; that the credit, therefore, was given to the husband, instead of the wife, at the time; that the plaintiff received payments from the husband, which reduced the amount down to four hundred and fifteen dollars.

Plaintiff, wishing payment of this balance, called upon the husband for it, who requested time for that purpose, which the plaintiff agreed to give if the wife would give her note for it, which she did, payable four months after date; and this is the note upon which the action is brought.

Whether the note was given and received in payment, or only as security, was a question upon which the evidence was conflicting, there being evidence tending to prove both.

The note is in the ordinary form of a note made by any competent party, without referring to her separate property, or to the fact that she was a married woman, and without stating what was the consideration for which it was given, and is signed simply "Mary Emery."

The only question in the case is, whether upon these facts, the note was valid, and whether the action against her can be maintained upon it.

If the balance of the account for which the note was given, was equitably due from the wife, and if, as between her and her husband and the plaintiff, there was an equitable obligation on her part,--as, if the materials furnished by the plaintiff, were thus used in improving her property, without...