Fuller v. Lumbert , 78 Me. 325 ( 1886 )

Emery, J.

From the evidence we gather the following facts : The defendant, Lumbert, with his wife and child, lived for a while in Chicago. Lumbert afterwards came to Bangor, leaving his wife and child in Chicago. The wife afterwards began proceedings in Chicago for a divorce, and notice thereof was served on Lumbert in Bangor. Pending the proceedings, Lumbert visited Chicago and had some talk with his wife and gave her the notes in suit. The notes were by agreement made payable in form to the nominal plaintiff, but they were given to the wife as her notes. The nominal plaintiff never had any interest in them. The wife afterwards procured a decree of divorce upon the same proceedings and then put these notes in suit..

The vital question is, what was the consideration for the notes ? The wife had some income of her own. She had, by her income and her labor, supported herself and her child for some time. The defendant, her husband, had not contributed for some time to their support. She claimed she had paid some bills for her husband. This last stated fact might have been a consideration for the notes, at least in part, had the notes been given for such bills. Such, however, does not appear to be the fact. The wife, in her deposition, states what the notes were given for. She says : "Ho (the defendant) told me at the time he gave the notes, that he had not supported us as he ought; that he had not done right; that he would give these notes and would pay them when they became due; that he had no money, but could raise the money by the time the notes were due; that he was sorry he could not do more ; that he regretted I had been obliged to take care of myself and our child for so long, and that he would support the child in addition to the notes. The notes were to help take care of myself and child.”

What thing, or right, or claim, did the wife give up for these notes? What gain or relief did the husband gain by giving them ? The wife had no cause of action against her husband for what she had done in the past for the support of herself and child. She would have had no cause of action for future self support. She could not legally charge him as her debtor with sums so expended. Third parties furnishing such support might have claims therefor, enforceable by action against the husband, but the wife herself co.uld not have such a claim. Her remedy for non-support was by divorce, which remedy she availed herself of.

The husband was legally bound to support his wife and child before the giving of the notes, and he was equally so bound afterwards. He obtained no release from any obligation. It does not . appear that she agreed to support herself or child thereafter, or to relieve him of any part of his legal obligations. The notes were only to help. He obtained no advantage, and she gave up no advantage.

Had she written to him at Bangor for money for the same purposes for which the notes were given, and he replied that he would send the money the next week, such a promise would not be a debt against him nor against his estate after his decease. Property conveyed by him to her to satisfy such a promise could not be held by her against his creditors. Probably a husband often promises money to his wife for her past and future expenses, but such promises are never thought to constitute the wife the legal creditor of the husband. These notes were only similar promises more formally evidenced. They were not gifts, but only promises. The consideration can be inquired into, as they have not been transferred. The writing and delivery of these notes caused no change in the situation, or in the relative rights or duties of either party. Nothing was acquired by the one, or surrendered by the other. The wife’s account of the transaction shows it was not a business one, and that the notes were not given for a legal consideration.

Plaintiff nonsuit.

Peters, C. J., Danforth, Virgin, Foster and Haskell, JJ., concurred.