Nourse v. Henshaw

• Decision Date: 03 July 1877
• Citation: 123 Mass. 96
• Parties: Benjamin F. Nourse v. Jane P. Henshaw
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 96

Benjamin F. Nourse v. Jane P. Henshaw

Supreme Court of Massachusetts

July 3, 1877

Suffolk.

Exceptions sustained.

C. A Welch, for the defendant.

E. F Hodges, for the plaintiff.

Morton, J. Endicott & Soule, JJ., absent.

OPINION

Morton, J.

This is an action upon a promissory note, signed by the defendant and her husband, given for money lent by the plaintiff, and which was secured by a mortgage of the real estate of the defendant. The mortgage was foreclosed and the estate sold, and the proceeds applied to the payment of the note. They were insufficient to pay the note in full, and the question in this case is whether the defendant is personally liable for the balance remaining unpaid.

The case was tried by the court without a jury, and the presiding justice found as facts: "1. That it was the purpose and intention of the plaintiff to make the loan upon the credit of the defendant and of her estate; 2. That it was the defendant's purpose and intention, before and when she borrowed the money, to apply it to the benefit of the firm of which her husband was a member; 3. That the plaintiff, when he made the loan, knew that such was her intention, and that such knowledge was one of the inducements which influenced him in the transaction." He also "ruled, as matter of law, that there was no evidence in the case which would justify a finding that the loan was made upon condition that the money should be applied in any particular way, or that would justify a finding that there was an agreement binding on the defendant to furnish it to her husband or to his firm." To this ruling the defendant excepted.

When a case is tried by the court, either party may file exceptions to the decisions and rulings of the court upon matters of law arising upon such trial, "in the same manner and with the same effect as upon trial by jury." Gen. Sts. c. 129, § 67.

If the presiding justice had found as a fact that there was no such condition or agreement, such finding might be conclusive upon the defendant, and not open to exception; but, having ruled as matter of law that there was no evidence which would justify such a finding, the defendant has the right of exception, and we must consider the question precisely as if the same ruling had been made in a jury trial.

To avoid misapprehension, it is proper to observe that the note in suit is dated in 1872, so that the St. of 1874, c. 184, which enlarges the capacity of married women to make contracts, does not apply to the case, but it is governed by the Gen. Sts. c. 108.

It has been held, under the Gen. Sts., that a married woman is liable upon a note given by her for money borrowed, or for goods purchased by her, upon her credit and for her sole use. Wilder v. Richie, 117 Mass. 382. Allen v. Fuller, 118 Mass. 402. This is upon the ground that, as the money or the goods became her separate property, her promise to pay for them is a contract in reference to her separate property.

But it has also been held that a note or other promise of a married woman, given for the accommodation of, or as surety for, her husband or any third person, cannot be enforced against her. Willard v. Eastham, 15 Gray 328. Athol Machine Co. v. Fuller, 107 Mass. 437. Heburn v. Warner, 112 Mass. 271. The distinction between the two classes of cases is, that in one the money or property, in reference to which her promise is made, becomes her separate property, held to her sole use and under her sold control, while in the other it does not, by the contract into which she enters, become her separate property. And, in Wilder v. Richie, it was held that it was immaterial that the lender of the money had reason to believe that the married woman intended to devote it to the benefit of her husband, as it appeared that she received the money to her sole use, with the right to apply it as she saw fit, and the lender had no control over her disposition of it.

In the case at bar, the plaintiff lent the money upon the credit of the defendant and of her estate. At the time she borrowed it she intended to apply it to the use of her husband or of his firm, and this was...