National Bank of the Republic v. Delano
| Decision Date | 01 April 1904 |
| Citation | 70 N.E. 444,185 Mass. 424 |
| Parties | NATIONAL BANK OF THE REPUBLIC v. DELANO et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles H. Sprague, for plaintiff.
S. L Whipple and J. B. Crawford, for defendants.
The exceptions in this case relate to 5 of the 16 promissory notes on which the suit was brought. These notes, bearing date November 13, 1897, were signed by C. R Delano, were payable to the order of George S. Delano, and on the back of each appeared the following indorsements The payee and the defendant were husband and wife, and the maker of the notes was their son. The notes were given by the son to the father in payment for a three-eighths interest in his business, in connection with the formation of a partnership between them. According to the testimony of the defendant, she signed them before they were signed by her son. According to the testimony of her husband, she brought them to him with his son's signature upon them, and gave them to him while he was eating his dinner, and he put them into his pocket and kept them until the meal was over, when he asked her to sign them, and she immediately affixed her signature.
The exception is to the direction of a verdict for the defendant on the ground that she was a joint maker of these notes running to her husband, and that her contract was void. If she signed before the notes were delivered and took effect as binding contracts, she was a joint maker, under the law of Massachusetts in force when the notes were made. Union Bank v. Willis, 8 Metc. 504, 41 Am. Dec. 541; Bryant v. Eastman, 7 Cush. 111; Pearson v. Stoddard, 9 Gray, 199; Richardson v. Boynton, 12 Allen, 138, 90 Am. Dec. 141. See Rev. Laws, c. 73, § 81. St. 1874, p. 463, c. 404 (Pub. St. 1882, c. 77, § 15), which required demand and notice to hold parties signing in that way, still left their promise that of joint makers. State Street Trust Company v. Owen, 162 Mass. 156-160, 38 N.E. 438; Mulcare v. Welch, 160 Mass. 58, 35 N.E. 97; Legg v. Vinal, 165 Mass. 555, 43 N.E. 518; Brooks v. Stackpole, 168 Mass. 537, 47 N.E. 419. A promissory note made by a husband to his wife, or by a wife to her husband, is absolutely void; and the same rule applies to a contract of indorsement, and to any other contract purporting to create a liability upon a note. Fowle v. Torrey, 135 Mass. 93; Roby v. Phelon, 118 Mass. 541; Browning v. Carson, 163 Mass. 255, 39 N.E. 1037; National Granite Company v. Whicher, 173 Mass. 517, 53 N.E. 1004, 73 Am. St. Rep. 317.
These principles are sufficient to sustain the ruling and dispose of the case, unless the evidence of the husband that he had the notes in his possession a short time before the defendant signed them makes a difference. If her signing was in pursuance of a previous agreement, she would be a joint maker, even though the notes had taken effect before she signed. Hawkes v. Phillips, 7...
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