Foster v. Leach

• Decision Date: 09 January 1894
• Citation: 160 Mass. 418,36 N.E. 69
• Parties: FOSTER v. LEACH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 418

36 N.E. 69

FOSTER v. LEACH et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 9, 1894

This was an action of contract against H.W. Leach and Anna F. Leach, the declaration alleging that the Nantucket Electric Light Company made a promissory note to the order of H.W. Leach, who indorsed it to Anna F. Leach who indorsed it to plaintiff, who was the owner and holder of it; that payment had been demanded and refused, and notice given; and that defendants owed the plaintiff the amount of the note, with interest. In the superior court, before Hammond, J., the jury found for the plaintiff against each defendant, and the latter excepted. The facts are in the opinion.

COUNSEL

Henry W.B. Cotton, for plaintiff.

W.C Coggswell, for defendants.

OPINION

ALLEN J.

1. The defendants' first objection was "that the plaintiff could not maintain his action upon the declaration, as it did not set out any joint promise of the defendants;" in other words, that a separate count was required for each defendant. This objection, if valid, (which we do not decide,) could only be taken by demurrer seasonably filed. Pub.St. c. 167, §§ 11, 12; Super.Ct.Rule 14; Downs v Hawley, 112 Mass. 237.

2. The second objection was that the declaration alleged a joint liability of the defendants, and that it appeared on inspection of the note that their contracts were several, and that therefore the note did not support the declaration, and was incompetent. The declaration, however, alleges separate contracts of indorsement by the two defendants, and the concluding averment--that they "owe the plaintiff the amount of said note"--may be taken distributively. Those words merely show a legal conclusion from what has gone before, and are not to be taken as setting forth a joint contract. Hawes v. Ryder, 100 Mass. 216; Oliver v. Gold Co., 11 Allen, 283.

3. The next objection was taken by the defendant Harry W. Leach, who asked the court to rule that, upon the evidence, the plaintiff could not recover against him on the declaration and in support of this request he contended that, under the declaration, he was in the same legal position as that of the maker of a note payable to the order of his wife, and by her indorsed to the plaintiff. The averment of the declaration is that "said H.W. Leach indorsed the same to A.F. Leach, and said A.F. Leach indorsed the same to the plaintiff." The argument is that, as H.W. Leach and Anna F. Leach were husband and wife, the indorsement was void, and the plaintiff's title invalid. There is no doubt of the general rule that a husband cannot make a good note to his wife, or indorse one to her for the purpose of giving her a title to it. Clark v. Patterson, 158 Mass. 388, 33 N.E. 589. But it was held in Slawson v. Loring, 5 Allen, 340, that where the names of a husband and wife appeared as successive indorsers, and it was shown that her indorsement was with his assent and under his direction, the indorsee took a good title. The authority of that decision has not been overthrown, though it has been limited to the special facts which there appeared. Gay v. Kingsley, 11 Allen, 345; Roby v. Phelon, 118 Mass. 541. In the present case the question arises in consequence of the form of the declaration, which avers an indorsement by the husband to the wife. The copy of the note annexed to...