Spalding v. Cargill — 1 N.Y. St. Rep. 787

Majority

p. 787

ALMA E. SPALDING v. HENRY H. CARGILL.

Headnote

Partnership—Husband and wipe—Husband and plaintiff were partners—Wife furnished money to her husband to be by him invested in the business provided defendant would, promise and give his note to pay her the money she advanced to her husband, the husband ASSURING HIM AT THE TIME THAT HE WOULD NEVER BE CALLED TO PAY THE NOTES AS HE (THE HUSBAND) WOULD PAY THE WIFE—JURY DIRECTED TO FIND FOR PLAINTIFF.

Exceptions of defendant directed by court to he heard in first instance at general term.

T. M. Tyng, for defendant.

John Toumshend, for plaintiff.

The action was against the defendant as maker of the promissory notes on which the action was brought, payable to plaintiff. The judge ordered that the exception of the defendant to the direction to the jury to find for the plaintiff, he heard in first instance at the general term.

The counsel for defendant places his right to go to the jury on an argument that the jury might have found that the following were facts: The husband

of the plaintiff and the defendant were partners in business. They were hound to contribute equally to the capital of the business. The defendant having contributed much more than the plaintiff’s husband, required of the latter that he should put in further money. The plaintiff’s husband brought to the defendant $600. The defendant took the money, credited his partner with it and applied it to the purposes of the business. Within two days thereafter the defendant gave to the husband of plaintiff $100 for her use, and within two days again the husband brought the notes in suit asking the defendant to sign them. The defendant at first refused, hut did sign them upon the husband

p. 788

saying that he only wanted them to show his wife, as evidence that he had put money in and that the defendant should never hear from them. Some averments of the answer should he given in connection wdth this statement of. facts. The answer shows that what the defendant called the money was in fact two drafts of $300 each, which the husband handed to the defendant and which the defendant collected; also the husband, at the time he handed the drafts to the defendant, told him that the moneys represented by the drafts were the moneys of his wife, and that he wanted to furnish his wife with some acknowledgment that the money had come into the hands of the defendant, and thereupon the notes were made.

The true rendering of these circumstances is that the wife furnished the money to her husband to be by him invested in the business, provided that the defendant would promise and give his note, to pay her the money she advanced to her husband, which he did, the husband assuring him at the time, that he would never be called to pay the notes as he, the husband, would himself pay the wife. The defendant says that when he accepted from the husband the drafts and collected them, he did so upon the faith of his understanding that they were the moneys of the plaintiff advanced by her to her husband and on his credit for use in the business, and not in any sense as money loaned upon his credit or for his benefit. Whatever may have been his understanding and faith, the fact was that he made the promise to the wife, as the kind of acknowledgement that she required. If he had not promised, the husband, it must be presumed, would have returned the drafts to his wife. It was for the personal interest of the defendant that the money should go into the business. The money was so truly advanced to him, as it was to the husband, when it was advanced to the latter on condition that the defendant should acknowledge its receipt, he voluntarily putting that acknowledgement in the form of a promissory note to the plaintiff. The placing of the money in the firm’s business was so beneficial to the defendant, that it would be a consideration for his individual promise to repay, or the parting of the plaintiff with her money on condition that the defendant should give his promissory note was consideration.

The first request made was to go to the jury, on the question whether the ' notes in suit were ever delivered to the plaintiff by the defendant so as to take effect against him. This was correctly refused, because, if there was consideration, the notes were delivered to the plaintiff’s husband for the plaintiff.

The next request concerned the question as to whether the notes were founded upon anyrvaluable consideration moving from her. The facts in the case show that there was such a consideration. The last request was, to go to the jury on the question whether the notes had not been paid. The answer did not set up a payment to the plaintiff. The defendant did not request to go to the jury on any other issue.

The exceptions of defendant are overruled, the motion for a new trial denied, and judgment for plaintiff on the verdict ordered, with costs.