Patterson v. Patterson , 45 N.H. 164 ( 1863 )

Bellows, J.

It appears from the report, that, at the time of her marriage to defendant, Mrs. Patterson had some property, for which, after the marriage, the husband gave his notes, payable to her, or her order, on demand; but it does not appear that she held this property to her sole and separate use.

The notes were given in 1844, and were twice renewed, once in 1850, and again in 1856, and both times by the plaintiff, the son of the defendant, claiming to act as his father’s agent, under a power of attorney, given in 1850, as the father was about'going to California, and making his son his general agent to transact his business in his absence, accompanied by a verbal direction to the son to keep these notes re-, newed.

The defendant returned in two or three years, and resumed Ms business as before he left, and was at home attending to his business, when the notes were renewed the second time, and without his knowledge, or any other authority than what is stated above. The notes, payable as before to Mrs. Patterson, were afterwards endorsed by her, and this suit brought for her benefit. Under these circumstances, we think, no recovery can be had upon these notes. In the first place, we think the authority of the agent expired by its own limitation, on the return of the defendant from California; and that the verbal directions accompanying the power of attorney are to be considered, not as a separate and distinct authority, but merely as empowering the execution of the authority given by that instrument. The agent’s authority, then, having expired, and with the knowledge of the plaintiff, the notes so made are not binding upon the defendant.

We are, also, of the opinion that the original note of the husband to the wife must be regarded as invalid. At common law it is clearly so, the husband and wife being regarded in law as one person, and incapable of contracting with each other without the intervention of trustees. 2 Kent Com. 129; Chancey on Husband & Wife, 1; Burleigh v. Coffin, 22 N. H. 124. In the latter case it was held that debts due from the husband to the wife before marriage were cancelled by the marriage.

Nor do we perceive that the case is brought within any of the provisions of our statutes which give a married woman power to contract as sole. It does not appear that the property for which the original note was given was held by the wife to her sole and separate use; or that the case comes within any of the provisions which authorize her to act as if sole. Besides, the property was received by the husband, and the note given in 1844, before the passage of the law of 1846 on which the plaintiff relies.

Even if it were otherwise, we are not prepared to hold that the husband might make such a contract directly with his wife. As the question, however, does not arise, we give no opinion upon it.

With these views, therefore, no recovery can be had upon the notes, and there must be

Judgment on the Report.