Winn v. Sanford
| Decision Date | 23 November 1887 |
| Citation | 145 Mass. 302,14 N.E. 119 |
| Parties | WINN v. SANFORD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. Brown, for plaintiff.
As the court ruled that the instrument sued on "cannot be made the basis of any legal claim against the defendant," it was not necessary to state the evidence relied on at the trial. The ruling is that such an instrument, under any conceivable circumstances, whatever evidence might be offered in connection therewith, is absolutely void, because the plaintiff's wife was one of the parties thereto. As no such defense was set up by the able counsel for the defendant, it is plain that such an interpretation of the case was a surprise to both sides; for the tendency of all the decisions of this court has been to conform with the spirit of the existing laws, which give a married woman a right of action against her husband for a separate support greatly enlarge her rights and liabilities as to property and "impair the unity and identity of interest between husband and wife which existed at common law" Butler v. Ives, 138 Mass. 202. This court impliedly regarded this instrument as of some binding force and effect when it was brought to the attention of the court in a suit where a party sought to collect of this plaintiff a bill for necessaries furnished the wife after its execution and a continued separation. Alley v. Winn, 134 Mass. 77. The instrument being a several, as well as a joint undertaking, the fact that the wife signed as a party affords no defense for the defendant upon his undertaking to incur the penalty named, should the wife do, or fail to do, what was there stipulated. If she had signed an agreement with her husband in settlement of a controversy in court between them containing the same stipulations upon his payment of money to her as approved by the court, and this was referred to in the instrument sued on, her name not being signed, it could not avail the defendant. In undertakings of trustees and others upon a separation both husband and wife often sign as parties, but that is nowhere held to excuse the third party from performing his stipulations. Fox v Davis, 113 Mass. 255; Page v. Trufant, 2 Mass. 160; Albee v. Wyman, 10 Gray, 222. See, also Chapin v Chapin, 135 Mass. 393.
L. Le B. Holmes and Eliot D. Stetson, for defendant.
The contract of the defendant was to be collaterally, and not originally, liable. The language of the bond shows this clearly enough. The object of the defendant was to secure a benefit to Mrs. Winn, not for himself; the defendant had no interest of his own, or any purpose or object of his own, to subserve, which have been held to be proper tests to determine whether a promise shall be regarded as original or collateral. Nelson v Boynton, 3 Metc. 403. Whether in a particular case the person sought to be charged intended to render himself originally responsible, is a question to be decided upon the circumstances of each case. The exceptions do not undertake to state all the evidence, and it must be taken as proved in this case, if it was legally competent for defendant to prove it in an action on this bond, that the defendant intended to render himself collaterally liable only for Mrs. Winn. The express language of the bond, too, clearly enough shows this intention of the defendant. He therein binds himself only "as surety" for Mrs. Winn "as principal." The contract of surety is an ancient and well-understood obligation in the law. It is an undertaking to be bound for the contracts and engagements of another. The defendant, being only liable collaterally in this bond, cannot be held under it, because it is void as to his principal, Mrs. Winn. A plain distinction exists between this case and those where the contract to which a party is surety is simply voidable as to the principal, not void. If it is voidable as to a principal, the surety may still be held, because its avoidance is a personal privilege of the principal only, upon which the surety cannot rely. Byles, Bills, 45. A guarantor of a void contract cannot be held, if the promisee knows it is void. As between Winn and his wife, the contract was absolutely void; but if Winn could not contract with his wife by this bond, he could not contract with her jointly with another. Edwards v Stevens, 3 Allen, 315; Kenworthy v. Sawyer, 125 Mass. 28. From considerations of public policy the legislature, while permitting a married woman to contract with other parties as if she were sole, has not permitted...
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