Phillips v. Wicks — 36 N.Y. Super. Ct. 254

Majority

p. 254

T. LETITIA PHILLIPS, Plaintiff and Respondent, v. GEORGE A. WICKS and ANGELINA G. WICKS, Defendants and Appellants.

Before Freedman, Curtis, and Van Vorst, JJ.

Decided June 28, 1873.

Headnote

Where a promissory note was made by a person payable to and endorsed by his wife, and there was no declaration contained 'in the note, or endorsement, to the effect that the separate estate of the wife was to he held chargeable with the consequences of her endorsement, nor did the proofs establish that the endorsement was in point of fact for the benefit of the wife’s separate estate, the wife cannot be charged with it (The Com Exchange Ins. Co. ®. Babcock, 43 _V. Y. 613 ; Yale v. Dederer, 33 W. Y. 450; White i>. McNett, 33 W. Y. 371, cited and approved). The facts proved that the note was made and delivered for the purpose of effecting an assignment of the property and facilitating a settlement of the affairs of a firm that owed the wife a large sum of money, and of which the maker of the note and the husband had been a member, and that the wife had some time previous to the said endorsement expressed a desire that said firm should make an assignment rather than go into bankruptcy, and that under the assignment by the firm made after the endorsement, the wife received a dividend of about fifty per cent., was insufficient to establish an actual benefit to the wife's separate estate additional to what she would have received if the firm had gone into bankruptcy, especially as the same proofs further established that the assignment and arrangements of the firm were not concurred in and consented to by all its creditors.

Appeal by defendants from a judgment against them rendered on the report of a referee.

The complaint alleged a promissory note, dated May 11th, 1868, made by George A. Wicks, payable to the order of and endorsed by Angelina G. Wicks, six months after date, for $2,800 value received, protest at maturity and notice given to the endorser; that said “Angelina G. Wicks, being the wife of said George A. “Wicks and having a separate estate, endorsed and de

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“livered the said note for the benefit of her said separate estate.” ' Judgment demanded for amount of the note with interest.”

The defendants answered separately. They both alleged want of consideration, and denied plaintiff’s ownership of the note. Angelina Gf. Wicks further pleaded that the said note was endorsed by her at the request of her husband, and as surety for him, and without any consideration whatever, and without any advantage or benefit to her or to her estate or property.

The referee found for the plaintiff and against both defendants, and defendants appealed.

William A. Boyd, for appellants.

Charles H. Smith, for respondent.

There is very little, if any, conflict as to the real facts of the case. In January, 1867, plaintiff’s husband, George S. Phillips, and the defendant George A. Wicks were members of the firm of George A. Wicks & Co. ; and as such member the first named had contributed thirty thousand dollars to the capital stock. In July, 1867, the firm stopped payment, and was succeeded in September following by the firm of Wicks, Julliard & Co., composed in part of the said George A. Wicks and George S. Phillips. This firm existed only a few months when a new firm was formed under the name of Wicks, Van Alstyne & Co., into which George S. Phillips was not taken. The last-named firm undertook to assume the liabilities, and to take the assets and property of Wicks, Julliard & Co. But Phillips, who had not been consulted, objected, and was about to commence a suit for the enforcement of his supposed rights, when a settlement was made with him, to which he assented, by which the new firm

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agreed to give Mm their note for $12,000 for his claim, and to employ him for one year at a salary of $7,000. Under this agreement Mr. Phillips went to work, "but at the time the firm ceased he had received no salary, nor had he "been paid the $12,000. The third firm was not more successful than its predecessors, and after a short existence stopped business, unable to pay its debts. It was then suggested that an assignment for the benefit of creditors should be made of the property and assets of the three firms, and as it was necessary to its validity that George S. Phillips should join in the execution thereof, he was requested so to do. It turned out that he was indebted to his wife, the plaintiff, for moneys belonging to her in her own right, which he had borrowed, and he insisted upon receiving some money with which to pay her. It was then agreed that his wife should have $7,000 in cash, and $3,000 in notes of the firm of Wicks, Van Alstyne & Co., then held by Mr. Julliard. But when the assignment was ready to be executed he was informed that there was no money. He replied that he regretted hav"ing consented, that it was against his interest to join, and he declined to affix Ms signature. Mr. Hoyt, one of the creditors and of the assignees named in the instrument, inquired whether Phillips would take security for the money to be given to his wife, and Phillips finally consented to accept such security as Mr. Hoyt should pronounce to be unquestionable. Mr. Hoyt thereupon consulted with the other parties, and after a short time he came back and assured Mr. Phillips that it had been made all right. Upon that assurance Mr. Phillips executed the assignment, and a few days thereafter he received from Hoyt the note in suit as part of the $7,000 referred to. The note appears to have been procured from George A. Wicks for the very purpose of being handed over to Mr. Phillips on account of his claim, and as an inducement to join in the execution of the as

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signment, and to have been endorsed by the defendant Angelina Gr. Wicks at the request of her husband, with some knowledge of the purpose for which it was intended to be used.

Upon this state of facts it is clear that the plaintiff, to whom the note has been turned over, is entitled to recover thereon against the defendant Greorge A. Wicks, as the maker thereof. There was a sufficient consideration, and the plea that plaintiff took the note in payment of a precedent debt will not avail him.

But as to the defendant Angelina Gr. Wicks, the case is different. She was and still is a married woman, and as such she had no legal capacity to bind herself generally. The object of all recent legislation upon the law of husband and wife has been to shield the wife against the power of her husband and against his disposition to squander her property more effectually than the case previously was, and for this reason the legislature has not yet seen fit to entirely remove the common-law disability of a married woman to bind herself by her contracts at large. Power was therefore conferred upon her to contract for certain purposes and for these only. To be obligatory upon her or her estate, her contract must relate either to her separate property or to the particular trade or business in which she is engaged. For these purposes she may enter into any contract in the same manner and with the like effect as if she were unmarried. The law gives to her the practical ownership of her estate, with the power to bind it for the payment of her debts. Where the debt has been contracted for the benefit of her estate, the latter is bound ipso facto. But where she incurs a liability for another, it is absolutely necessary that her intent to make such liability a charge upon her separate estate be declared in the contract creating -the indebtedness (The Corn Exchange Ins. Co. v. Babcock, 42 N. Y.

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618 ; Yale v. Dederer, 22 N. Y. 450 ; White v. McNett, 33 N. Y. 371 ).

There is no evidence that Angelina G. Wicks was engaged in any business or profession, nor does the note in suit contain a declaration such as George S. ^Phillips might have insisted upon, to the effect that her estate was to be held chargeable with the consequences of her endorsement. Unless, therefore, the proof established that the said endorsement was in point of. fact for the benefit of her separate estate, the latter cannot be charged with it. The only evidence upon this point is that she had a claim of eighty thousand dollars against the firm of George A. Wicks & Go. ; that some time •prior to the said endorsement she had expressed a desire that said firm should make an assignment rather than go into bankruptcy, and that under the assignment she received a dividend of about fifty per cent. This is ■clearly insufficient to establish an actual benefit to her separate estate, in addition to what she would have received if the said firm had gone into bankruptcy, -especially as the proof further shows that the assignment was not concurred in by all the creditors.

The judgment should be affirmed, with costs as against the defendant George A. Wicks, and as to Angelina G. Wicks it should be reversed, and the order of reference should be vacated, and a new trial ordered, with costs ,to abide the event.

'Ouetis and Yah Youst, JJ., concurred.

Cases cited

Yale v. Dederer 22 N. Y. 450 N.Y. p. 258
White v. McNett 33 N. Y. 371 N.Y. p. 258