Hancock Bank v. Joy , 41 Me. 568 ( 1856 )

Appleton, J.

The defendant, having funds in California, and wishing to transmit them to this country, purchased, for that purpose, at Columbia, (Cal.,) of Adams & Co., a draft on their house in Boston, (Mass.,) payable to the order of his wife, which he transmitted to her.

It is clearly established by the evidence, that the funds with which the draft was purchased, belonged to the defendant, and that his wife was to use the draft and receive the proceeds thereof by his direction and authority.

The wife of the defendant indorsed the draft in suit, which she received from him, to the plaintiffs, and received of them the amount for which it was drawn. The acceptors having failed, the draft was protested for non-acceptance and nonpayment, and seasonable notice thereof was forwarded to the indorser.

By the common law, a note made payable to a' married woman is a note to the husband, and becomes instantly his property, and her indorsement transfers no property in the note. Savage v. King, 17 Maine, 301. But the wife may convey a title by indorsing in her own name with her husband’s authority. Prestwick v. Marshall, 7 Bing. 565.

The material question for determination in the case under consideration, is, whether the husband is liable upon a contract made by the wife, in her own name, but with his authority. If the wife can bind the husband under such circumstances, it is immaterial whether it be as the maker of a note or the indorser of a draft.

To determine satisfactorily the rights of the parties, it may not be amiss to examine the various decisions in England and in this country, which bear upon the points .involved in this case.

In Prestwick v. Marshall, 4 C. & P., 594, it was held that the indorsement by a married woman, with her husband’s assent, of a bill of exchange, drawn by her, is binding upon him, and will pass the interest in the bill so as to enable him to sue the acceptor. In this case the indorsement was by the wife in her own name. The case came subsequently before the Court upon a motion to set aside the verdict obtained at Nisi Trius, but, upon argument, the ruling of the Justice, before whom the cause was tried, was sustained. Prestwick v. Marshall, 7 Bing. 565.

In Prince v. Brunatte, 1 Bing. N. C., 485, the suit was against the acceptor of a bill of exchange, alleged to have been drawn and indorsed by Sarah Ellwood. The defence was, that the indorser was the wife of Thomas Ellwood, who was then alive. It was there held to be sufficient to pass the title to the bill that it was drawn and indorsed by the authority of the husband.

In Linders v. Bradwell, 5 Man., Grang. & Scott, 583, a bill of exchange was addressed to the defendant by the name of William Bradwell, his true name being William David Brad-well, and was accepted by his wife, by writing across it her own name, “ Mary Bradwell.” There was no evidence of any express authority in the wife so to accept the bill; but, on its being presented to the husband, after it became due, he said he knew all about it, that it was a millinery bill, and that he would pay it shortly. The Court held the husband was liable as acceptor. Maulé, J., in delivering his opinion, says, “if'a man says to his wife, 'accept such a bill, drawn upon me in your own name,’ unless he means to be bound by it, he means nothing. Unless such an acceptance operates to charge him, it has no operation at all. The defendant clearly meant to bind himself, if in law he could do so. It is said that a drawee cannot bind himself otherwise than by writing his name on the bill. Here the defendant has, by the hand of his wife, written 'Mary Bradwell’ on the bill. If he had done this with his own hand, it clearly would have been his own acceptance; and I know of no rule of law, that makes such an acceptance void. * * I admit that nobody but the defendant could accept this bill so as to charge him; but he has accepted it in the hand and by the name of his wife, and that, I think, is a sufficient acceptance to bind him.” It is therefore manifest, that in England the husband may authorize the wife to indorse or accept bills in her own name, and render him liable by such indorsement or acceptance.

In Pennsylvania, the same principles of law have been recognized as sound. In Rukert v. Sanford, 5 W. & S., 164, the note in suit was given by the wife, in her own name. It was there held that the husband was liable on the promissory note of the wife, given, by his authority and approbation, in her own name. “ Our law,” says Burnside, J., in Leeds v. Vail, 3 Harris, 185, “is, that a negotiable note, given or indorsed by a wife, in the hands of a bona fide holder, cannot be given in evidence against the husband, unless it be first shown that it was given with his approbation or under his authority.” The same general doctrines are affirmed by the Court in Field v. Eves, 4 Harr. (Del.) 385.

In Stevens v. Beal, 11 Cush. 291, it was held that a wife, with the consent of her husband, might indorse in her own name a promissory note made payable to her during coverture, and pass a good title to the indorsee. But such indorsement, if valid to pass the title, is equally so to impose upon the indorser the usual liabilities arising from the contract of indorsement.

The draft in this case being the property of the husband, and the wife indorsing it by his authority, in her own name, but on his account, we think his liability the same as if the indorsement had been by him.

By the statutes of this State the wife is allowed to act as sole in the management of her own estates. Whether the husband will, in any event, be liable for the acts of the wife relating to her own property, is not a matter before us. The draft in suit belonged to the husband and not to the wife, and the rights and liabilities of parties are to be determined by the rules of the common law and not by the special provisions of our statute. Defendant defaulted.

Tenney, C. J., and Hathaway, May, and Goodenow, J. J., concurred.