Pierce v. Kittredge

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Ames
• Citation: Pierce v. Kittredge, 115 Mass. 374 (Mass. 1874)
• Decision Date: 27 June 1874
• Parties: Samuel H. L. Pierce v. Mary A. Kittredge

115 Mass. 374

Samuel H. L. Pierce v. Mary A. Kittredge

Supreme Court of Massachusetts

June 27, 1874

Suffolk. Contract to recover on an alleged verbal acceptance by the defendant of an order drawn upon her and her husband.

At the trial in the Superior Court, before Devens, J., a verdict was ordered for the defendant, and a bill of exceptions in substance as follows was allowed:

It appeared in evidence that prior to the date of the order, the drawers thereof, McGinley & Sherman, had entered into a written agreement to find the materials and build a dwelling-house on land belonging to the defendant. The agreement was signed both by the defendant and her husband. The dwelling-house was built in pursuance of the contract and was fully paid for as agreed, the defendant making the payment in person. McGinley & Sherman bought lumber of the plaintiff to the amount of the order, which went into the defendant's house, and for which they owed the plaintiff at the time the order was given; and the defendant owed McGinley & Sherman at the date of the order; and time of its alleged acceptance more than the amount of the order; and more than the amount of the order was afterwards paid by the defendant to Sherman on a final settlement for the house.

After the evidence of the plaintiff was in, the court ruled that "If the husband and wife made a joint written contract with Sherman & McGinley to do work on the premises of the wife in building a house thereon, and Sherman & McGinley drew an order on the husband and wife in favor of the plaintiff, who had furnished materials for said house, and the plaintiff presented the same to the husband and wife, and the wife in her husband's presence said that the same should be paid, such evidence is not sufficient to sustain the action against the wife, even if she afterwards said to Pierce and others that the order was all right and should be paid." The plaintiff alleged exceptions to the above ruling.

Exceptions sustained.

B. E Perry & S.W. Creech, Jr., for the plaintiff.

C. H Fleming, for the defendant. The case finds that the consideration of the order was a contract which the plaintiff made with McGinley & Sherman, and not by virtue of any contract with the defendant, and, as the owner of separate real estate, the defendant made no express agreement to make the debt a charge upon it. The defendant was a mere surety and accepted the order for the accommodation of another, without consideration received by her, as she owed the plaintiff nothing, not having contracted with him; and the accepting of the order was no benefit to the defendant's separate estate; and, therefore, the promise cannot be held to be a contract, in reference to her separate property. Athol Machine Co. v. Fuller, 107 Mass. 437. Willard v. Eastham, 15 Gray 328.

Ames, J. Colt & Endicott, JJ., absent.

OPINION

Ames

It is fully settled by a long course of decisions that, except where otherwise provided by statute, an oral acceptance of a bill of exchange will bind the acceptor. Lumley v. Palmer, 2 Strange 1000. Powell v. Monnier, 1 Atk. 611. Clarke v. Cock, 4 East, 57. Fisher v. Beckwith, 19 Vt. 31. Barnet v. Smith, 10 Fost. 256. Ward v. Allen, 2 Met. 53. Exchange Bank v. Rice, 98 Mass. 288. 3 Kent Com. (12th ed.) 83-6, and cases cited. In some of these decisions the courts express their regret that such a rule should have been established, but they all agree that it is too late to change it.

The defendant, although she was a married woman, had the same right under our statute (with certain limitations which do not affect this case) to enter into any contracts in reference to her separate property or business, as if she were unmarried. Gen. Sts. c. 108, § 3. She may not only incur obligations with regard to property which she already owns, but may bind herself by agreement for the acquisition of property to her separate use. Ames v Foster, 3 Allen 541. Chapman v. Foster, 6 Allen 136. She may be the highest bidder at an auction sale of real estate, and bind herself to complete the purchase. Faucett v. Currier, 109 Mass. 79; S. C. ante, 20. Her note given in consideration of real estate conveyed to her separate use is binding upon her. Stewart v. Jenkins, 6 Allen 300. If she should think fit to increase the value and productiveness of her land, by building upon it, she would have a right to do so, and would be bound by any contract she might make for labor or materials for that purpose. Stewart v. Jenkins, supra. The...