Morse v. Mason , 103 Mass. 560 ( 1870 )

Morton, J.

The only question presented in this case is, as to the liability of Eliza M. Mason upon the note in suit. The statement of facts does not furnish us with the means of deciding this question. It appears that the note was given in payment for labor and materials furnished in building a barn upon land which was the separate estate of Mrs. Mason; but it also appears that it was given after the barn was finished. If Leonard Morse was employed by Asa F. Mason, and agreed to build the barn upon his account and credit, the note signed by Mrs. Mason would not bind her, for want of a sufficient consideration to support her promise. It would fall within the rule of law that an executed and past consideration is not sufficient to support a subsequent promise. Chamberlin v. Whitford, 102 Mass, 448, and cases cited. On the other hand, if Morse contracted with Asa F. Mason as the agent of his wife, and upon her credit, the note given by her, with a knowledge of the facts, would be a contract in reference to her separate estate, founded upon a sufficient consideration and binding upon her. Parker v. Kane, 4 Allen, 346. It does not appear by the statement of facts whether the contract was made with the husband upon his own credit, or as the agent of the wife. If this essential fact is in dispute, it must be settled by a trial. This court cannot determine it.

We have not felt called upon to consider whether a note of a married woman, which in the hands of the original payee is invalid for want of consideration, can under any circumstances be enforced against her in a suit by an indorsee for value who takes it in the usual course of business before maturity. This question was not raised at the argument, and the agreed facts do not state when or under what circumstances the note in suit was indorsed to the plaintiff.

As the statement of facts does not contain all the facts necessary to determine the rights of the parties, it must be discharged and the Case stand for trial.