Majority
Judgment affirmed as to Theodore Haighi, with costs ~nd disbursements, and the judgment against Ellen J. H. Haight modified by deducting therefrom $~,OOO ai~d interest, and, as so modified, affirmed, with costs and disburse-m~nI-c, in hpr_
This action was brought to recover the sum of $7,250, upon an agreement dated July 9,1887, which provided that a sum of money not to exceed $10,000 should be advanced to the defendant Theodore Haight by the plaintiff; that such sums so advanced were, upon the death of plaintiff and his wife, to become the property of the defendant Theodore Haight, provided that during the lives of plaintiff and his wife interest was paid .at the rate of fifteen per cent per annum. On failure, however, of Haiglit to pay interest, then the whole sum was to become due, .and the defendant Ellen J. H. Haight agreed to repay such advances. Plaintiff claims to have advanced the amount sued for, and that, the interest being unpaid, the whole sum ■claimed to have been advanced has become due. Upon the trial it appeared that of the $7,250 the sum of $2,000 was advanced before the making of the agreement, and that at the various times when advances were made promissory notes were given, payable on demand, instead of receipts. The notes having been surrendered upon the trial, the courfc submitted the question of the amount of indebtedness, and in effect directed a verdict for the full amount and interest against both defendants. We shall treat the case then as though the verdict was directed. As regards the defendant Theodore Haight, ire think the “verdict was right; for though, upon the other evidence in the case, a question might have been presented as to whether themoneys were advanced under tho agreement cr upon the promissory notes, this was set at rest by the testimony as to the manner in which the notes were given and the purpose for which they were received, and by the evidence of the defendant Theodore Haight, who admitted the receipt of the $7,250, which lie stated lie was to invest under the agreement, the' money to be his in the end, and that no part; of such sum was repaid. His express admission, together with the other evidence in the case, was conclusive upon the liability of the defendant Theodore Haiglit, and removed any doubt that might otherwise exist as to whether the moneys were advanced on the notes or under the agreement. A different question, however, arises as to the liability of the defendant Ellen J. H. Haight in regard to the $2,000 which was concededly given to her husband, Theodore, prior to the making of the agreement. It is not claimed that any of tho money was advanced to Mrs. Haiglit, her status being that of a guarantor under the agreement, by the te2\ms of which she was to repay such advances of money as might be made to her husband, only in case her husband should die before the plaintiff and his wife, or upon failure to pay interest. It was not made to appear that when she signed the agreement she knew of any prior advances, nor is there anything in the language of the agreement itself which binds her to repay past loans. In the absence of such testimony, and considering the language of tho agreement itself, which in express terms refers to advances thereafter from time to time to be made, we are furnished with no good reasons upon which her liability for past advances can be predicated. No motion for a now trial was made, nor was any order entered denying such a motion, nor any appeal taken therefrom, and though we are thus confined to a consideration of questions of law, the question as to Mrs. Haight’s liability is directly raised by the exception taken to the refusal of the court to charge the jury or to hold that, in order to render her liable, the money must have been advanced under or pursuant to the agreement. As the evidence stood, therefore, at the close of the trial, we think it was the duty of the court, while directing a verdict against the husband for the full amount, to nave deducted from the amount chargeable against the wife the $2,000 which had been given to the husband prior to the making of the agreement, and for which, by the terms thereof, she was not liable. The judgment as to Theodore Haight should accordingly be affirmed, with costs and disbursements and the judgment against Ellen J. H. Haight modified by deducting therefrom $2,000 and interest, and, as so modified, affirmed, with costs and disbursements to her.
Follett and Parker, JJ., concurred.