Schmidt v. Spencer

Grant, J. This is a suit upon two promissory notes executed by defendants to plaintiff. Defendants were husband and wife. The husband applied to plaintiff for both these loans, but he would-not let him have the -money, because' the land on which they lived was owned by the wife. It was arranged that both should execute the notes. This was done, and the money paid; plaintiff testifying that he paid it to Mrs. Spencer, and defendants testifying that he paid it to Mr. Spencer. But it is immaterial to which one the money was paid. There was no evidence in the case tending to show that the money was borrowed for the use and benefit of the wife, or for her separate estate. In fact, it was borrowed and used for the sole benefit of the husband. Neither of the defendants informed plaintiff that the loan was for the benefit of the wife,' nor had he any reason to infer that it was for her benefit. In the absence of such representations by her, and the presence of the fact that the loan was for the husbands benefit, the note as to her is void. It is jirue that the plaintiff testified that Mr. Spencer asked for the second loan as the agent of his wife, but [124] this becomes immaterial, in view of the fact that he knowingly took the note of husband and wife. He must be held to know the law, that such a note is void as to the wife unless the money was borrowed for the benefit of her separate estate, or she has made representations which will estop her from setting up the defense. The learned circuit judge should have instructed the .jury to render a verdict for the defendant. Judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.