Adams v. Cuny

Merriok C. J. This suit is brought upon a draft drawn by A. H. Cuny and Sarah J. Cuny, in favor of James M. Crook, for the sum of $1,150. The petition alleges that the consideration enured to the benefit of the wife. The judgment of the lower court was in favor of both defendants as in case of a nonsuit. Plaintiff appeals. By reason of the incapacity of the defendant, Sarah J. Cuny, to contract, the burden of proof was upon the plaintiff to show that the draft was valid as to her. In regard to the other defendant, it is true that the petition alleges the debt enured to the benefit of the separate estate of the wife. But this fact did not prevent the husband from binding himself as surety in solido with his wife, nor simply as her surety. The plaintiff presents the joint draft of the husband and wife. The plaintiff’s counsel contends that the husband must be considered as bound as surety for the [486] whole debt. Bat it is clear that he cannot as surety be bound for a debt which is not due by reason of failure of consideration (if any there be) against the principal. The judgment of nonsuit in favor o!' the wife was properly rendered. But we think a new trial ought to be granted as against the husband. It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed as to said Sarah J. Cuny, and avoided and reversed as to said A. H. Cuny, and that it be remanded íor a new trial as to tlie latter, the plaintiff and A. H. Cuny paying each one-half the costs of the appeal.