Bank v. Buzzell , 61 N.H. 612 ( 1882 )

Special authority given by the defendant Josie Buzzell to her husband to sign her name to notes as surety for his benefit was not a general authority to sign for and bind her as principal. Whitehouse v. Hanson,42 N.H. 9. The act of the husband in signing his wife's name, so as to make it appear that she was bound as principal maker upon the note, was a usurpation of power which she had not conferred; and the contract of agency, which was special, and limited to an authority to sign as surety only, could not be enlarged in that way. There was no evidence that the defendant advertised or held out her husband as an agent to bind her beyond the authority she gave. If, on the face of the note expressed to be joint and several, her signature appeared to be that of principal instead of surety, there was no evidence of a ratification of the unauthorized act of the husband on her part. If a failure to deny the signature under a rule of court operated as an admission of its genuineness, and estopped her from denying it, the admission and estoppel could not be made to go beyond that fact, and did not preclude her from making any other available defence, nor from proving the plea that her promise was that of surety merely. Her verbal admission of the authority of her husband to sign the note was coupled with the protest that it was only a signing as surety, and ratified nothing not before authorized. Her promise to pay, made under a threat of a criminal prosecution of her husband, and in consideration of the plaintiffs' forbearing to prosecute, was void, even if it had other consideration. Merrill v. Carr, 60 N.H. 114. The understanding of the plaintiffs at the time the note was signed, derived from the unauthorized acts and representations of the husband, and not induced by anything the defendant did, had no bearing upon the question at issue, and was properly excluded. Bank v. Buzzell, 60 N.H. 189.

The claim of the plaintiffs that the signature of the defendant was a forgery, and that, if it were shown, a recovery could be had against her, has no foundation in reason or in fact. If the signature was not genuine, the defendant made no contract or promise, either as principal or surety. The plaintiffs put their case on the genuineness of the signature, contest the light of the defendant under the rule to deny it, read the note in evidence under the same rule; — they do all this under a special replication that the defendant made the promise as principal and not as surety, and then endeavor to show that she did not make it at all. The plaintiffs cannot be permitted to do this, and it would not help them if they were.

There being no evidence of any ratification by the defendant of her husband's act in signing her name to the note as principal, and all the evidence showing want of authority to sign in any other way than as surety and for the benefit of the husband, she was not bound by the promise to pay (G. L., c. 183, s. 12), and the verdict was properly taken in her favor.

Judgment on the verdict for the defendant Josie Buzzell.

BLODGETT J., did not sit: the others concurred.