National Granite Bank v. Tyndale
| Decision Date | 06 September 1900 |
| Parties | NATIONAL GRANITE BANK v. TYNDALE (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R. M. Morse, W. H. Leonard, and C. H. Hanson, for plaintiff.
J. P Prince and S. H. Tyng, for defendant.
These two cases were argued together. The first is an action at law, and was before this court on the defendant's exceptions in Bank v. Whicher, 173 Mass. 517, 53 N.E. 1004, and it was there held that, the maker of the notes being a married woman, and the notes being made payable to the order of her husband, and indorsed by him, no action could be maintained on them against her. It comes before us now on exceptions by the plaintiff to a ruling by the presiding justice that upon the plaintiff's offer of proof an action could not be maintained against the administrator on the common counts for money lent, or for money had and received, and to a ruling that the plaintiff was not entitled to avail itself of the facts set up in the bill in equity in answer to the defense that the notes were void because made payable to the husband of defendant's intestate. The plaintiff offered to show that on December 29 1891, it lent the defendant's intestate $15,000, and that at the same time the defendant's intestate gave the plaintiff three promissory notes for $15,000, payable to the order of her husband, and indorsed by him and by two other parties; that subsequently the defendant's intestate repudiated the notes on the ground that, having been made payable to her husband, and indorsed by him, they were void; and that the plaintiff had expressly refused to make the loan to the other parties, or on their individual credit, and made the loan only to defendant's intestate, and on her credit.
We think that the ruling was erroneous. The offer was to show that the loan was made to defendant's intestate, and on her credit. This was consistent with the form of the note, of which she was the maker, and the other parties were, as between them and the bank, the indorsers. Lewis v Monahan, 173 Mass. 122, 53 N.E. 150. The fact that the note was declared void as to her did not destroy the original transaction, or avoid the debt created by the loan to her. Walker v. Mayo, 143 Mass. 42, 8 N.E. 873; Sutton v. Toomer, 7 Barn. & C. 416. If the other parties to the note had been co-makers with her, and the loan had been made to all of them, and the note had afterwards been avoided by one of them, there would seem to be no doubt that the payee could have maintained an action against all of them for money had and received, or money lent. Leonard v. Society, 2 Cush. 462. In such a case, the note having been received on the faith that it was the valid note of all, the payee 'would be warranted in treating it as a nullity, and resorting to the original contract.' Leonard v. Society, supra. A fortiori, ought that to be the case when the liability of the other parties is, as here, collateral, and the action is brought against the maker alone. It is true that the plaintiff could have treated the note as valid as against the other parties, and that, if the plaintiff had sued and recovered against the last indorser, for instance, the husband might have been estopped in an action against him by a subsequent indorser to deny the validity of the note. Roby v. Phelan, 118 Mass. 541. But this action is not against the indorsers, and the counts that we are considering are not upon the note. The only use of the note which the plaintiff can make in relying on those counts is as evidence tending to show the terms on which the loan was made to defendant's intestate. It cannot recover upon the note and the common counts both, and, so far as it relies upon the common counts, it must be taken to rely upon the...
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