I think that the determination of the Appellate Division should be affirmed by us. Whether the defendant established that there was no consideration for the note was a question, upon the evidence, for the jury to decide. That there was a delivery of the note to the plaintiff was conceded by the learned judge, who presided at the trial, and there can be no question, in my opinion, about the fact. The plaintiff's husband, who obtained the note from the defendant, not only delivered it into her hands; but he wrote upon the envelope, which inclosed it, that it was her personal property and she produced it upon the trial. That he violated any understanding with the defendant in delivering it, is of no materiality; if, as between them, there was a consideration for the giving of the note. If this note was given by the defendant, either, for account of some indebtedness to his brother, or as a loan to the latter to enable him to fulfill his promise to the plaintiff, in either case, the plaintiff obtained title. The only available defense to her demand for *Page 485 payment was that the promise to pay was not supported by any consideration whatever. I do not think that the question of consideration as between the plaintiff and her husband is of any importance, in determining the defendant's liability. Concededly, as between her and the defendant there was no claim of any consideration passing between them; but, if the note was made and parted with upon some consideration moving between the defendant and his brother, the plaintiff obtained a valid and enforceable title to it. According to the plaintiff's evidence, intermediate the time of her engagement to be married and the marriage, her intended husband "agreed to give her $10,000, which was to be increased from time to time as he was able to do it." Not being in writing, the agreement was unenforceable under the Statute of Frauds; but, notwithstanding its invalidity and regardless of the question whether, under the circumstances, the marriage furnished the support of a consideration for such an agreement, the plaintiff's husband was not prevented from performing his promise. This has the support of reason and of authority. (Newman v. Nellis, 97 N.Y. 285.) If, after marriage, he chose to recognize his agreement as a moral obligation and, in performance, delivered the note, the plaintiff held it as her own beyond any right on his part to recall it. The defendant could not defeat his obligation to pay by setting up the invalidity of the transaction between plaintiff and her husband. All that he could rely upon, for that purpose, was the nullity of the transaction as between him and his brother. Upon that point, notwithstanding that he had denied receiving any consideration for the note and had testified that the note was not delivered by him to his brother to be used, there were facts tending to contradict him. The note recited that it was for "value received $12,000," and it was in the payee's possession.
Without regard to the evidence of the previous business relations between the brothers, those facts were sufficient to warrant the submission of the case to the jury. That was the rule laid down by this court, as recently as in the case ofStrickland v. Henry, (175 N.Y. 372), cited by the Appellate *Page 486 Division. That was an action upon a promissory note, where the defense was that it was made for the accommodation of the payee and that it had no legal inception. We held that the defendantwas contradicted by an admission of his own in the body of the note that it was given for value received. It was said, in the opinion, that "while it was open to defendant to contradict that statement and to show that, as a matter of fact, it was without consideration, the note in the possession of plaintiff raised the presumption that it was given for a good consideration, and passed to plaintiff in due course of business. The defendant's evidence tended to overthrow this presumption. Whether it was true was, in view of the legal presumption raised by plaintiff's possession of the note indorsed by the payee, and the recital therein that defendant had received value for it, a question of fact to be determined by the jury." That there was no consideration for the making of this note, rested upon the defendant's evidence alone and his credibility, in view of his admission in the note and of its possession by the plaintiff, as its payee, was a question for the jury to pass upon. The direction of a verdict for the defendant was, therefore, an error; for which the Appellate Division properly reversed the judgment.
VANN, J. (and CULLEN, Ch. J., and WERNER, J., in result) concur with O'BRIEN, J.; BARTLETT and HAIGHT, JJ., concur with GRAY, J.
Order reversed, etc.