Wyman v. Whitehouse

Peters, C. J. The plaintiff, as indorsee, sues the estate of Lucy Wyman, deceased, to recover the following note: "Vassalboro, February 24, 1853. For value received, I promise [262] to pay Edward G. Wyman, or order, six hundred dollars with interest annually, payable at my death out of my estate. (Signed) Lucy Wyman.” This is a copy of the note as originally given. The note at some time was indorsed to the plaintiff. The original parties to the note, both now deceased, were at its date, husband and wife. On the same paper on which the note was written, the following was also written and signed by the wife. "The above note is given in consideration of six hundred dollars, paid by my husband to my brother John, and sister Betsey, August, 1852, as their full share out of my father’s estate.” At common law, and that governs this contract, the note was void. At its date, the statutory changes, affecting the business rights of married women, had not reached that grade of development which would allow the wife to execute commercial paper to any person. Howe v. Wildes, 34 Maine, 566. Several other cases in this state are to the same effect. Since the date of the note, the barriers which prevented her contracting with persons other than her husband have been removed. And it has been held, that, by the implication of later statutes, husband and wife may even contract with each other, though a remedy for the enforcement of contracts strictly between themselves is not available while the marital relation exists. The remedy may come into life by the death of one of the parties or after their divorce. Webster v. Webster, 58 Maine, 139 ; Blake v. Blake, 64 Maine, 177. These statutory provisions, and their implications, can have no retrospective application, and do not give any validity to a contract which was in its beginning void. Bryant v. Merrill, 55 Maine, 515. It is readily perceivable that many important contracts would have been subverted, and vested rights impaired, had the construction of the law been otherwise. In 1868, a transaction took place between Lucy Wyman and her husband, which the plaintiff relies upon as rendering the note valid. They procured a person to sign his name to the two papers, note and memorandum, asa witness. The plaintiff goes so far as to contend that the note was really made at that time and dated back to 1853. It is enough to say, in answer to this [263] suggestion, that the evidence touching- the note, both internal and external disproves it. The more important inquiry is whether that act of the parties ratified and confirmed the note at that time, giving it validity. We are of opinion that it did not, even if the parties supposed it would have such effect. There was not any new consideration. A void promise continues void. A promise to keep a void promise adds no element of strength. It is a "mere dalliance to excuse the breach of promise.” It is written in water. If the note wore merely a voidable contract, having any shade of force, it would be different. But here, by all authority, the contract was and is void, with no spark of vitality in it by which it can be enkindled into life. The parties in 1868, could have made a contract with each other, but there is no evidence that they did so, or that they wanted or undertook to do so. "A contract is void when it is without any legal effect; voidable, when it has some effect; but is liable to be made void by one of the parties or a third person.” Bishop, Cont. § 611. This result need not be regretted for any supposed injustice or inequity. The case shows that the husband must have expected to obtain his annual interest out of the use of her farm, the only property of any consequence she had. That he got his interest as they went along, and greatly more than that is evident. He stripped the place of its valuable wood and timber, sold off the personal property, and reduced the fields to poverty by a systematic and long continued practice of selling the hay taken therefrom. There may be no legal claim upon him or his estate in these matters, but they are evidence that he really suffered but little if any real loss on her account. In re Blandin, 1 Low. Dec. 543, 545. And more than all else, while there may not be strict legal proof of the fact, there is great reason to suppose that the wife believed that she was discharging all obligations to her husband by the legacy of six hundred dollars, the same amount for which her note was given, which she provided for him in her will. Judgment for defendant. Walton, Daneortii, Virgin, Emery and Foster, JJ., concurred.