Knowles v. . Toone

Millbb, J. In order to charge the payment of an obligar tion created by a married woman upon her separate estate, which is not made for the benefit of such estate, there must be a contract in writing expressing an intention to create a liability upon such estate. The defendant, being a married woman, was the indorser of a promissory note, to recover the amount of which this action is brought, which was presented to the plaintiff for the purpose of obtaining the money on the same. The plaintiff refused to purchase the note at the time, and propounded certain questions to the defendant in regard to the same and as to her liability to pay it as well as her pecuniary responsibility. In answer to these questions the defendant stated, among other things, that if the note was not paid she considered it incumbent upon herself to pay the same and that her private estate was bound therefor. This statement bore date three days after the date of the note, and in reliance upon it with the note the plaintiff parted with his money. The contract was not complete until this time, and the referee found that the note had no inception until the plaintiff bought it. This finding is fully sustained by the facts and the contract, we think, must be determined by the note itself in connection with the answers made to the questions propounded. The rule is well settled that two cotemporaneous writings between the same parties, upon the same subject-matter, may be read and construed as one paper. (Rogers et al. v. Smith, 47 N. Y. 324. See, also, Treadwell v. Archer, 76 id. 196, and Taddiken v. Cantrell, 69 id. 597.) In the first case cited supra it is said that both the instruments were executed at the same time although the statement as to the liability of the defendant was dated one day after the execution of the note. In Treadwell v. Archer the note and instrument were executed at the same time. In Taddihen v. Cantrell an alteration was made in the contract after it had been executed, and it was held that, there being authority, for *537 the alteration, it was valid and binding. These cases establish that, where the two instruments are simultaneous and intend to embody the contract of the parties, they must be read and construed in connection with each other. The fact that one is dated after the other can make no difference if the contract' is not carried into effect until the date of the latter. The existence of the two papers prior to the payment of the money upon the note, and their possession by the plaintiff at the time when it was paid, establish that they are to be taken and regarded, as a'part of the same transaction. It was only after the latter was executed that the contract was consummated and the money paid, and there is, we think, no ground for claiming that the latter instrument is to be regarded as separate and distinct from the note. Construing them as one contract, the question arises whether the defendant bound her separate estate by the statement made in answer to the questions propounded. She stated expressly that if the note was not paid by the drawer she considered that she was bound to pay the same and that her private estate was liable therefor. This was in substance an agreement and a promise that in case the note was not paid she would pay it out of her private estate. It is said that this was a mere expression of an opinion as to the law upon the question as to her liability. It clearly was not the intention of the parties to ascertain her opinion on a legal question but to bind her separate estate for the liability which she had assumed, and it cannot be-said that the questions and answers did not contain any of the elements of a contract and were not intended for any such purpose. The real object of these questions and the answers to the same was to make a valid contract by which the defendant’s separate estate should be held liable for the debt in question. The money was parted with upon this ground, and without such separate liability it is very manifest that it would not have been paid. The declaration made by the defendant was to the effect that her separate estate was to be bound, and, in answer to some of the questions put, she stated where it was and what the value of the same was. It is quite apparent that the intention of the parties was that the *538 defendant should bind her separate estate for the payment of the note, and that, in consequence of the assurance that her separate estate was bound, the plaintiff parted with his money. Such was the import of the contract into which the defendant entered,- and in view of the representations made by the defendant she is estopped from denying that her separate estate was bound. The referee erred in his conclusion and the General Term in affirming his judgment. The judgment should be reversed and a new trial granted, costs to abide the event. All concur. Judgment reversed.