People's Trust Co. v. Merrill

• Decision Date: 02 January 1917
• Docket Number: No. 1397.,1397.
• Citation: 78 N.H. 329,99 A. 650
• Parties: PEOPLE'S TRUST CO. v. MERRILL et ux.
• Court: New Hampshire Supreme Court

99 A. 650

78 N.H. 329

PEOPLE'S TRUST CO.

v. MERRILL et ux.

No. 1397.

Supreme Court of New Hampshire. Grafton.

Jan. 2, 1917.

Transferred from Superior Court, Grafton County; Sawyer, Judge.

Assumpsit by the People's Trust Company against Arthur K. Merrill and wife on a promissory note for $250, signed, "Merrill & Co." and executed by Arthur K. Merrill. The note was payable to the order of S. B. Withington, and was indorsed to the plaintiff for value before maturity. It was originally given for the purchase price of a horse bought by the defendants of Withington. To the finding that "Merrill & Co." is a copartnership consisting of Arthur K. Merrill and his wife, Anna G. Merrill, and that, as such, they purchased the horse which they still have, the defendant Anna G. Merrill duly excepted, claiming that a partnership cannot legally exist between husband and wife. Transferred from the superior court. Case discharged.

Scott Sloane, of Lebanon, for plaintiff. George W. Pike, of Lisbon, and Fred S. Wright, of Woodsville, for defendants.

PEASLEE, J. The transferred case does not show in what way the finding excepted to was material to the conclusions which were reached in the superior court. The briefs of counsel indicate that there was a verdict for the plaintiff against the wife, and that this was based upon the finding that there was a partnership between the husband and wife, whereby the husband gained authority to bind her by a partnership note. If this is the situation, the verdict must be sot aside.

The common law refused to recognize contracts between husband and wife. Kimball v. Kimball, 75 N. H. 291, 73 Atl. 408. And the statute enlarging the powers of married women provides:

"That the authority hereby given to make contracts shall not affect the laws heretofore in force as to contracts between husband and wife." P. S. c. 176, § 2.

While the tendency of the law has been "to put husband and wife on an equality in respect to property, torts, and contracts" (Gilman v. Gilman, 95 Atl. 657), it has not as yet abolished the mutual disabilities which have always been incident to coverture. The enactment above quoted is a legislative declaration of the continuance of the common-law theory in some of these respects.

The present case is broadly distinguishable from Orr v. Merrill, 98 Atl. 303, upon which the plaintiff relies. In that case the wife made the contract of purchase which was sued upon, and the question here involved was expressly excluded...