Luther v. Cote , 61 N.H. 129 ( 1881 )

At the time the conditional note was given, the defendant Ida could not legally contract, except in respect to her separate estate (Gen. Sts., c. 164, s. 13); and as, by the contract, the colt was to remain the plaintiff's until paid for, and as it has never been paid for, it is obvious that the title did not pass to Ida (Holt v. Holt, 58 N.H. 276), and consequently that the contract was not one in respect to her separate property. In the view most unfavorable to her, she was, at most, simply the conditional vendee of the colt, and held it as bailee of the vendor (King v. Bates, 57 N.H. 446), and if any possible right in it could attach to or become part of her separate estate, it would be only the right to perfect the title by the performance of the condition; and, moreover, the facts show not only that there was no intention that the colt should become part of such estate, but also that the contract was not binding upon her because she was a minor. It is therefore very plain that the first note had no validity as against her, and it is equally plain that the understanding of the plaintiff, as to her liability, was entirely immaterial.

The sale by the husband terminated the bailment, and gave the plaintiff the right to take possession of the colt wherever he could find it; but, on the contrary, he ratified the sale, from which this defendant derived no benefit, by surrendering the conditional note and taking another without condition. But the debt thus created did not bind the wife, because under the statutes then in force it did not arise in respect of her separate estate; and if it be said that her disability to contract generally was removed by the statute of 1876 (Laws of 1876, c. 32, s. 1), and that therefore the note in suit must be regarded as valid, a decisive answer is, that her undertaking thereon was and is clearly as surety and in behalf of her husband, and consequently invalid, because that statute provided that "no contract * * by a married woman as surety or guarantor for her husband, nor any undertaking by her for him or in his behalf, shall be binding on her."

The defendant Ida is entitled to

Judgment on the report.

ALLEN J., did not sit: the others concurred.