Shaw v. Emery , 38 Me. 484 ( 1854 )

Cutting, J.

— The plaintiff introduced in evidence a note purporting to have been signed by the defendant, and made payable to one Charles B. Ellis or bearer. And called William H. Snell, who testified, that in October, 1846, as the general agent of Ellis, he went to the defendant’s house, in Ms absence, and presented to his wife a note of a similar date and tenor, with the exception of the word “ order”, instead of “ bqarer”; that he called for the purpose of procuring the latter word to be substituted by the defendant for the former, for certain reasons then disclosed; that the wife declined to make that alteration, but did then sign her husband’s name to the note in suit and delivered it to the witness, who surrendered to her the original note; that in a week or ten days afterwards, he met the defendant and informed him “ what he had done,” who replied “ it was all right, he should have done it, if he had been at home,” and that the note in suit was duly transferred to the plaintiff. Upon this evidence the Judge presiding ordered a nonsuit, to which the plaintiff excepts.

The evidence wholly fails to establish any authority in the wife to place her husband’s signature to the note, either with or without the sanction of her own as his agent. And this admission exhausts the authorities cited by defendant’s counsel, on that point.

But it further appears, that the original note had been canceled and delivered up to the wife, and the presumption is, that it had gone into the possession of the husband and constituted a valid consideration for the renewal; that the 'defendant, with a knowledge of the facts, ratified and confirmed the whole proceedings, and thereby established a prima facie case for the plaintiff. Bryant v. Moore, 26 Maine, 84. Exceptions sustained— and nonsuit to be taken off.

Seepley, C. J,, and Tenney and Howard, J. J., concurred.