Schmid v. Spicer , 5 Boyce 269 ( 1914 )

Boyce, J.,

delivering the opinion of the court:

The Marshallton Silk Manufacturing Company, owned and managed by the husband of the defendant, was engaged in the manufacture of silk at Marshallton, this, county, and had dealings with the McDonnell Stout Company, silk dealers, which latter company had held a chattel mortgage upon the property of the first mentioned company for some years before the note sued upon in this action was made.

■ It appears that previous to the making of the note the husband of the defendant represented to the McDonnell Stout Company, the payee in the note, that he had a purchaser for his silk mill and the land on which it was erected, belonging to his wife, and he requested the company to satisfy its chattel mortgage, agreeing, if satisfaction thereof should be made so that he might effect the sale of the property, to pay a portion of his indebtedness to McDonnell Stout Company, and to secure the balance by his promissory note indorsed by his wife. The chattel mortgage was satisfied; the property was sold; payment of a part of the indebtedness was made; and the note sued upon was given for the balance of the indebtedness, indorsed by the defendant. But it does not appear from the evidence that the defendant was present, or had any knowledge of the negotiation between the parties, or that her husband had any authority as her agent to bind her. On the other hand, the defendant when called by the plaintiff testified to the effect that she indorsed the note in question as an accommodation indorser only; that she did not receive any benefit therefrom whatever; that she indorsed the note at the request and upon the representation of her husband that it would be a benefit to him; and that the note was given for the debt of the Marshallton Silk Manufacturing Company, which was conducted by her husband and with which she had nothing to do whatever.

Under the facts shown, it is quite clear to the court that the agency relied upon by the plaintiff has not been established; and it is equally clear that the defendant indorsed her husband’s note as an accommodation indorser.

The plaintiff cannot, therefore, have a recovery in this action. Kohn v. Collison, 1 Marv. 109, 27 Atl. 834.

Gentlemen of the jury:—The court instruct you to return a verdict for the defendant.

Verdict for the defendant.