MaCkeown v. Lacey

• Decision Date: 05 January 1909
• Parties: MacKEOWN v. LACEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 437

86 N.E. 799

MacKEOWN v. LACEY.

Supreme Judicial Court of Massachusetts, Essex.

January 5, 1909

COUNSEL

Rowell & Clay, for plaintiff.

J. P. Sweeney and L. S. Cox, for defendant.

OPINION

MORTON, J.

The instruments declared on were promissory notes, though not negotiable, and were given by the defendant's testator to the payee for money lent by her to him before their marriage. Interest was paid on them by him to within a few days of the marriage. After the marriage the notes remained in the possession of the payee, but no interest was paid or demanded. After the testator's death the notes were indorsed by the payee to the plaintiff and were duly delivered by her to the plaintiff and thereupon this action was brought. No money or other consideration was paid for the transfer of the notes and the plaintiff was cognizant of the facts in regard to them. The defendant asked the court to rule that the plaintiff was not entitled to recover. The court refused so to rule and found for the plaintiff for the full amount claimed. The case is here on exceptions by the defendant to the refusal to rule as requested and to the finding in favor of the plaintiff.

The indorsements operated as assignments of the notes to the plaintiff (Hill v. Lewis, 1 Salk. 132; 2 Ames' Cases on Bills and Notes, 100, note 1), and under St. 1897, p. 378, c. 402 (Rev. Laws, c. 173, § 4), which was in force at the time of the transfer and of the bringing of the action, the assignee could sue in her own name. The notes were valid in their inception and whatever may have been the law formerly it must now be regarded as settled in this commonwealth that the subsequent marriage of the maker and payee did not extinguish them or render them void. Butler v. Ives, 139 Mass. 202, 29 N.E. 654; Spooner v. Spooner, 155 Mass. 52, 28 N.E. 1121. Chapman v. Kellogg, 102 Mass. 246, and Abbott v. Winchester, 105 Mass. 115, were disapproved if not overruled in Butler v. Ives, supra. It is still the law that husband and wife are incompetent to contract with each other. Caldwell v. Nash, 190 Mass. 507, 77 N.E. 515. But at the time when these notes were made the parties were not husband and wife and that rule does not, therefore, apply.

Exceptions overruled.