Loomis v. Ruck — 14 Abb. Pr. 385

Majority

p. 385

LOOMIS against RUCK.

Supreme Court, Second Department, Second District;

General Term, May, 1873.

Headnote

Married Women’s Note.— Negotiability.— Specific Charge on -Separate Property.^[4]

A note made by a married woman, payable to her own order, and at a future date, and at a specified place, is negotiable, although it contain a clause making the amount of the note a charge upon her separate estate.

p. 386

John I. Loomis sued Martha and John Ruck, on a promissory note made by Martha, the wife of John, payable to her own order, and indorsed by her, and

p. 387

also indorsed by John, her husband. The note was in the usual form of a note to the maker’s order, and was payable four months after date, containing, however,

p. 388

after the words “valuereceived,” the following clause, “which is hereby made a charge upon my separate estate, the consideration hereof having been for the benefit of said estate.”

The wife put in an answer in the action setting up among other things that she was a married woman at the time of making the note, and also alleging want of consideration, and duress or coercion by her husband.

The referee found that she made the note with the clause in question, as alleged in the complaint, and that before maturity it was indorsed by her, and also by her husband, who delivered it to plaintiff for a

p. 389

valuable consideration, viz: an outstanding over-due note previously made by Buck for goods sold to Mm by plaintiff, on wMch plaintiff .had threatened suit. That the wife’s note was, as between her and her husband, an accommodation note, and not actually for the benefit of her estate, of which fact plaintiff had knowledge ; also that defendant was coerced into making the note, but that of this fact the plaintiff had no knowledge. .

On these facts he found in favor of the plaintiff against both defendants.

B. M. Stillwell, for the appellants.

I. The wife could not make a valid promissory note except in her separate business, or for the benefit of her separate estate (Yale v. Dederer, 18 N. Y., 265 ; 22 Id., 450 ; Owen v. Cawley, 36 Id., 600 ; Corn Exchange Insurance Co. v. Babcock, 9 Abb. Pr. N. S., 156 ; S. C., 42 N. Y., 624 ).

II. The instrument by which a married woman may charge her separate estate is not a promissory note within the law merchant. It must be a special contract (White v. McNett, 33 N. Y., 376 , and cases above).

III. Hence, plaintiff is not an indorsee, but only an assignee holding subject to equities.

IY. The action would not lie in its present form against the married woman,-for the complaint in such an action must be special (Baldwin v. Kimmel, 16 Abb. Pr., 359 ; Corn Exchange Bank v. Babcock, above).

Edward J. Maxwell, for respondent.

I. As to the wife’s liability, cited and commented oh, the additional cases of Deck v. Johnson, 1 Abb. Ct. of App. Dec., 497 ; Barrett v. Lichtenstein, 39 Barb., 194 ; Story Eq. Jur., §§ 1396, 1399 ; Stewart v. Kerwall, 3 Mad., 387.

II. Assuming, then, that the note was executed and

p. 390

delivered as stated, and that prima facie, it is a valid subsisting obligation, which might be enforced against her, will a recovery be defeated in this case upon her showing that it was procured from her by coercion of of her husband ? The answer is most decidedly a negative (Bank of St. Albans v. Gilliland, 23 Wend., 311 ; Youngs v. Lee, 18 Barb., 187 ; affirmed in, 2 N. Y. [2 Kern.], 551 ; Gould v. Segee, 5 Duer, 260 ; Purchase v. Mattison, 3 Bosw., 310 ; McBride v. Farmers’ Bank, 26 N. Y., 450 ; Brown v. Leavitt, 31 Id., 113 ; Bromley v. Walker, 51 Barb., 203 ; Pratt v. Coman, 37 N. Y., 440 ; Day v. Saunders, 3 Keyes, 347 ;^[4] Magee v. Badger,^[3] 30 Barb., 246 ; Vallett v. Parker, 6 Wend., 615 ; Morton v. Rogers, 14 Id., 575 ; Rockwell v. Charles, 2 Hill, 499 ; Hall v. Wilson, 16 Barb., 548 ; Osborn v. Robbins, 36 N. Y., 365 ; Swift v. Tyson, 16 Pet., 1 ; Chitty on Bills, 104, 105 ; 5 Bin., 469 ; 1 Bailey Re., 355 ; Edwards on Bills, 308 ; Id., 354).

We think that a note made by a mailed woman payable to her own order and at a future date and at a specified place, is negotiable although it contain a clause that the amount of the note is therein made a charge upon her separate estate. To give her a position as to her separate estate as if unmarried, the use of the words whereby her separate estate is charged should not be held to destroy the negotiability of the note.

The plaintiff is a bona fide holder of the note before maturity. He gave up his claim against John Ruck and took therefor the note in question.

The cases establish this to be a good consideration. The judgment should be affirmed, with costs.