The Saratoga County Bank v. . Pruyn

Tracy, J. A married woman cannot bind herself by contract, unless, first, the obligation was created by her in or about carrying on her trade or business; or, second, the contract relates to or is made for the benefit of her separate estate; or, third, intention to charge the separate estate is expressed in the instrument or contract by which the liability is created (The Manhattan Brass and Mfg. Co. v. Thompson, 58 N. Y. 80; Nash v. Mitchell, 71 id. 199; 27 Am. Rep. 38); or, fourth, the debt was created for property purchased by her. (Tiemeyer v. Turnquist, 85 N. Y. 516; 39 Am. Bep. 674.) *255 Ho intention, to charge the separate estate of the defendant was expressed in the notes in question, and the court before whom the cause was tried has found as a fact that the defendant was not engaged in carrying on any separate trade or business at the time of the giving of the notes. The only possible ground of liability remaining, therefore," is that the contract was in fact made for the benefit of her separate estate, or that she represented to plaintiff that it was so made, and that in discounting the notes it acted upon the faith of such representation. But the trial court has also found that the notes were not in fact made for the benefit of her separate estate, and that no part of the avails thereof were used in, or upon, or went to the benefit thereof; and there would seem to be abundant evidence to support such finding. We have only then to consider whether the defendant, at the time the money was obtained upon the notes, represented to the plaintiff that they were for the benefit of her separate estate, and the plaintiff discounted the notes upon the faith of such representations. It is not pretended that the defendant made any verbal representations to the discount committee, or to any officer of the bank. The only representations claimed or relied upon by the plaintiff are those made by the defendant’s husband, John F. Pruyn, and such inferences as may rightfully be drawn from the notes in question, and the checks given by defendant. There can be no doubt that the representations made by her husband, John F. Pruyn, at the time of obtaining the money, were sufficient, if binding upon the defendant, to subject her to liability for the amount of the notes. But the trial court has found as a fact that the husband was not the agent of the defendant in this particular transaction, and that he was not her general agent, and that he had no authority to make the representations and statements alleged to have been made by him to the discount committee of the plaintiff’s bank; “ nor were any of the representations as to said notes mentioned in the complaint, or the avails thereof, or the use or application to be made of the same, or of the avails thereof, made by her, or by her husband as her agent.” *256 There remains to be considered, therefore, only the effect of the notes and of the checks, which were in her handwriting, as representations made by the defendant to the bank. A promissory note in the ordinary form, signed by a married woman, payable to the order of her husband and indorsed and presented for discount by him, is not a representation upon its face that the note is made to raise money for her. ¡No implication, presumption or impression that she was to be benefited by it in her business or estate could be drawn from its form, and from the fact that she had given it to her husband for the purpose of having it discounted. (Second National Bank v. Miller, 63 N. Y. 639.) To give such a note vitality and effect it must be made to appear, by evidence aliwide the instrument, that it was made in her sepárate business, or for the benefit of her separate estate. The fact that she owns a separate estate is not alone sufficient. (Broome v. Taylor, 76 N. Y. 564.) The checks drawn by the defendant and upon which the officers of the bank testify that the proceeds of the discount were subsequently paid to the husband do not appear to have been shown to the discount committee, or to any officer of the bank previous to or at the time the notes were discounted. The first check of the defendant for $500 was dated on the 14th of September, 1876, the date of the original note for the same amount, but it appears from the testimony of Van Hoevenbergh, the cashier of the bank, that this check was not charged until the 18th. On the 6th of January, a note of $800 was discounted, in part renewal of the $500 note and for $300 in addition, and “on the 8th of January,” testifies the cashier of the bank: “ Mrs. Pruyn drew a check on our bank for $300, and we paid that check out of John F. Pruyn’s money.” ¡No officer of the bank testifies that he knew of the existence of these checks, or that he was in any way influenced by them in discounting the notes for the defendant’s husband. It is not necessary to consider what inference might have been drawn from the checks had they been exhibited to the officers of the bank and relied upon in making the discount. They were not so exhibited, and as a representation made by the *257 defendant, constitute no part of the case, and must he eliminated therefrom. It follows that the defendant was not liable to the bank for the money obtained upon the notes in question. The judgment of the General Term, affirming the judgment entered on the report of the referee, should be affirmed, with costs. All concur. Judgment affirmed.