Bank v. Hunton , 69 N.H. 509 ( 1898 )

"No contract or conveyance by a married woman, as surety or guarantor for her husband, nor any undertaking by her for him or in his behalf, shall be binding on her." P.S., c. 176, s. 2. "The only reasonable construction that can be given to the exception in the statute, exonerating a married woman from her contract made in behalf of her husband, is one confining it to contracts with third persons to pay or guarantee the payment of her husband's indebtedness to them, and the performance of his contracts with them." Farnham v. Fox, 62 N.H. 673, 674. One purpose of the statute was "to re-enact her common-law incapacity to assume his contract obligations, or become a surety or guarantor for their performance." Parsons v. McLane,64 N.H. 478, 479. On the other hand, "her alterable intention to give him the money did not suspend her legal capacity to hire it." Wells v. Foster,64 N.H. 585, 590. If she hired the money without any agreement that it should be applied to take up the husband's note, she was liable. Her intention to use it for that purpose would not be a part of her contract, and would have no effect upon its validity. But if, as a part of the agreement to make a loan to her, it was stipulated that the money should go to pay his debt to the lenders, it would be "a contract with third persons to pay . . . her husband's indebtedness to them," and void under the statute which re-enacted "her common-law incapacity to assume his contract obligations."

If the plaintiffs' version of the contract was true, the defendant was liable; while, if her version was the correct one, she was not liable. The decision of the case depended upon the determination of a disputed question of fact, and the motion to direct verdict was properly denied.

The instructions excepted to state the law applicable to the defendant's version of the facts. To return a verdict for the defendant under these instructions, the jury must find that the minds of the parties met upon the proposition that the proceeds of her note were to be applied to the husband's note. The other instructions reported state the law applicable to the plaintiffs' evidence. If the jury had found that she borrowed the money, not to take up the husband's note but only with the intention to use it to pay the note, they would have returned a verdict for the plaintiffs.

The test of liability was whether the taking up or payment of the husband's note was a part of her contract with the lenders. The jury were properly instructed that nothing was a part of the contract except such things as the minds of the parties met and agreed upon, and that the defendant's mere intention to use the proceeds of her loan to pay her husband's debt would not defeat recovery. The charge is not reported in full, and it is presumed that the jury were fully and correctly instructed as to matters not made a part of the reserved case.

Exceptions overruled.

YOUNG, J., did not sit: CHASE, J., dissented from the decision that the instructions were correct: the others concurred.