Reakert v. Sanford , 5 Watts & Serg. 164 ( 1843 )

The opinion of the Court was delivered by

Kennedy, J.

This suit was brought by the defendants in error, as the endorsees of Job Barker, against the plaintiff in error, upon a note dated the 19th of May 1S34, drawn in negotiable form by the wife of the plaintiff in error, in her own name, for 185.29, payable six months after the date thereof, to the order of Job Barker.

The first question presented by the bills of exception to the evidence admitted and the errors assigned thereon, is, was the evidence admitted and given such as tended to prove either an express or implied authority given by the plaintiff in error, the husband, to his wife to draw negotiable bills or notes, in the course of her dealing and business, for which the husband might be held liable ? For unless the evidence offered and given was such as went to prove that such authority had been given by the husband to his wife, the note ought not to have been admitted in evidence. To render the husband liable to the payment of the note in the hands of even bond fide endorsees and holders, both reason and law would seem to require that it should be first shown that it was given by the wife with his approbation, or under his authority; otherwise it ought not to be permitted by the court to be given in evidence against him, in order to make him liable to the payment of it. It is certainly not sufficient, in such case, to entitle the note to be given in evidence, though given for goods purchased by the wife for the purpose of carrying on her trade or business, to show that the wife was engaged in trade, or in the millinery business, as in this instance, and that she bought the goods on credit for the purpose of carrying on her business, with the knowledge of her husband, without any objection to her doing so on his part, or did so even with his express approbation. For a husband may be perfectly willing to be answerable for the prices of goods purchased on credit by his wife, for the purpose of carrying on the business in which she is engaged, as long as it is done in such manner as that he, if she be defrauded or imposed on in the purchase of the goods, shall not be precluded from showing the fact as a defence against the payment of them. But if he agrees that she shall buy goods on credit, and give negotiable bills or notes for the payment of them, he thereby gives up that security or protection which otherwise he would be entitled to claim against frauds that may be practised on his wife in buying goods, to his great prejudice. For, the moment that such paper, given by the wife with his approbation for the payment of the goods, comes into the hands of bona fide purchasers, in the ordinary course of business, for valuable consideration, the husband becomes absolutely bound for the payment of it at maturity, however fraudulent the transaction may be, for and on account of which the paper was given. In a matter, then, of such vast importance to the interest of the husband, it never can be presumed, and indeed it never ought to be inferred, on slight grounds, that he has parted with his right to full protection against frauds committed on his wife, that may affect or prejudice his interest. This being the law in relation to this point, did the evidence offered and received, in this case, tend to show that the plaintiff in error had either expressly or impliedly authorized his wife to give or draw bills or notes, of a negotiable character, to secure the payment of the price of goods purchased by her for the use of her business ? I have looked for it, but in vain; I cannot perceive that the least tittle of such evidence was given. We therefore think that the court below erred in admitting the note to be given in evidence.

The next question which arises grows out of the bill of exception taken to the opinion of the court in rejecting the evidence offered by the plaintiff in error. He, after showing that, previously to the trial, notice had been given to the defendants in error, the plaintiffs below, that on the trial of the cause they would be required to show what consideration they had given for the note in suit, offered to prove by Mary Krickbaum, (here his honour states the offer in the 4th bill of exceptions). This evidence was objected to by the plaintiffs, on the ground that they were bona fide holders of the note for a valuable consideration, without notice of any of the matters that were offered to be proven. The court taking up this notion also rejected the evidence, but permitted the plaintiff in error to prove by the same witness, that witness w'as in the employ of Mrs Reakert, his wife, for nine or ten years; that she was present when Mrs Reakert gave the note in suit to Job Barker, saw her give it to him in the shop; that the signature to the note , was Mrs Reakert’s, but Barker wrote in the rest of the note. The words “ At the Commercial Bank of Philadelphia” were not on the note at the time it was given, nor till the note was returned. Barker brought the note back afterwards himself to Mrs Reakert, when she asked him “ What is this, ‘ At the Commercial Bank V ” He said he put it on to make it go down the better; that he thought it would go better in New York. This was after the note was protested. He said it had been protested. He had the note with him then, and wanted Mrs Reakert to pay it. She said there were better men than him in the penitentiary. After this evidence was given, the plaintiff in error again offered the testimony proposed to be.-given by Mary Krickbaum, which had been overruled as stated above; but it was objected to and overruled a second time by the court. We are clearly of opinion that the court below erred in rejecting the testimony thus offered, because the testimony given by Mary Krickbaum went to show distinctly that the note, after it had been protested for non-payment, was taken up by Barker, the payee and first endorser on it, and that he thereby became the holder of it again after it had become payable. And if so, which was a fact to be left to the jury, to be decided by them according to the evidence, it is perfectly clear that the plaintiffs could not, after that, claim to exclude the evidence on the ground that they were bona fide holders of the note for a valuable consideration without notice •, for, taking it after maturity, they took it subject to all objections which could be interposed to the payment of it by the plaintiff in error in the hands of Job Barker, the payee, from whom, it must be presumed, they received it. But further, in addition to the evidence given by Mary Krickbaum, showing that the note was taken up by Barker after it had been protested for non-payment, the fact appears to be so by an endorsement on the note itself, partly blurred, but still quite legible, stating it to be paid by Job Barker to Patton, an officer, as it would seem, in the bank where it was held at the time of and after protest.

That the evidence rejected was material to the issue, cannot be questioned by the plaintiffs after they got the note in evidence, and especially too under the view which the court seemed to have taken of the case. For the court having permitted the note to be read in evidence to the jury, must have considered that the jury might infer from the circumstances given in evidence, that the plaintiff in error had authorized the giving of the note by his wife. But the evidence offered and rejected went to show that the plaintiff in error had not only actually forbidden his wife from dealing with Barker, but also from giving a note to any one; of all which Barker was made fully acquainted before he took the note in suit. Thus showing, if the jury should have credited the evidence, that the plaintiffs below had not even the colour or shadow of any ground to recover on. But in another view it was material, even supposing that the plaintiff in error had authorized his wife to give notes for goods purchased by her in the course of her business, because it tended to prove that the notes had been obtained upon a consideration which had failed, in part at least, if not upon false and fraudulent representations.

Judgment reversed, and a venire de novo awarded.