Browning v. Carson

Field, C. J. But for Pub. Sts. c. 147, § 11, Mrs. Carson alone would have been liable to pay for the goods sold to her, as they were sold on her sole credit. See § 10. By the eleventh section the husband is made liable if the certificate required by [260] that section is not recorded “in the samé manner and to the same extent as if such contracts had been made by himself.” The wife is liable because she bought the goods on her separate account. The husband is liable because the' statute makes him liable if a certificate is not recorded. Feran v. Rudolphsen, 106 Mass. 471. The liability is not joint, but several. Ridley v. Knox, 138 Mass. 83. The court trying the case without a jury has found that the note of Mrs. Carson given on December 16, 1891, was taken in payment of the account then existing, and was so understood by the plaintiffs and Mrs. Carson, and that no fraud or deceit was practised on the plaintiffs. The account having been paid by the note, neither the wife nor the husband is liable on the account, and the husband is not liable on the note because he is not a party to it. On the facts found, the plaintiffs could not rescind the transaction by returning the note. It is immaterial that when the note was given the plaintiffs did not know that the certificate had been recorded. It does not appear that the plaintiffs at that time knew anything about the statute on the subject. The statute requires the recording of a certificate to protect the husband from liability; if a certificate is not recorded, he is liable; if it is recorded, he is not liable on contracts made after the certificate has been recorded. The belief or knowledge on the part of the plaintiff that a certificate has or has not been recorded, or their knowledge of the statute, is in either case immaterial. The court should have ruled on the third count that, as the note given by the wife was taken by the plaintiffs in payment of the account, the plaintiffs could not recover against the defendant on that count. The first and second counts are upon the note given on June 1, 1891, signed by both the husband and wife, and payable to the order of the husband and by him indorsed in blank to the plaintiffs. The facts found by the court, that no demand was made on the makers at the maturity of the note and no notice of non-payment given to the defendant as indorser, prevent the plaintiffs from recovering against the defendant on the second count, which is against him as indorser of the note. The first count is against the defendant as maker of the note given June 1, 1891. Whether this note was given as absolute payment of the account and of the notes then unpaid, or as con [261] ditional payment or as collateral security for the payment of this indebtedness, there was a valuable consideration for the note. We assume that the note was not valid against the wife, because it was payable to her husband’s order, and was by him indorsed to the plaintiffs. Roby v. Phelon, 118 Mass. 541. Her contract as maker of the note being void, the husband is still liable as maker. When two persons execute a contract and one is not bound by reason of some disability, the other remains bound, especially when the facts which constitute the disability are known to the other. Woodward v. Newhall, 1 Pick. 500. Tuttle v. Cooper, 10 Pick. 281, 291. Yale v. Wheelock, 109 Mass. 502. The court found that at the date of the writ there remained unpaid on the note declared on $627.23, and on the account declared on $835.64, making a total of $1,462.87; that deducting the amount received by the plaintiffs from Mrs. Carson’s estate in insolvency, viz. $365.29, there was left a balance of $1,097.58, which with interest up to the day of the finding amounted to $1,170.38; and that this amount was due to the plaintiffs from the defendant. We understand that the plaintiffs proved against Mrs. Carson’s estate in insolvency their whole account for which both notes were given. Whether a proof in this form ought to have been allowed is a question not before us. The amount received from her estate in insolvency must be regarded as received pro rata in part payment of the debt for which the note declared on was given as well as of the account declared on. To this extent the amount apparently due on the note should be reduced, and there should be a finding for the remainder, with interest from the date of the writ. On this bill of exceptions the only order we can make is that the exceptions be sustained; but this does not render it necessary that the special findings of fact by the court should be set aside, although the ultimate finding of the amount due must. be. The special findings of fact appear to have been made upon evidence to which no exceptions have been taken; and when the amount due on the note declared on in the first count is found, and the proper deduction made on account of the amount received from Mrs. Carson’s estate in insolvency, the whole amount of the damages recoverable by the plaintiffs will appear. There must be a new trial on the first count on the question of damages. Exceptions sustained.