Ambler v. Ames

Mr. Justice Morris

delivered the opinion of the Court:

With reference to the first instruction requested by the defendant, which seems to have been intended mainly to raise the question whether the previous unsatisfied loan to the wife was a sufficient consideration for the subsequent promise by the husband, the court would have been justified in refusing it in any case, inasmuch as the references in it to the collateral security given for the loan and the absence of any written promise of repayment were utterly misleading and calculated to divert the attention of the jury to matters that had no bearing whatever upon the issues in suit. In a suit upon a promissory note it is entirely immaterial that collateral security given for the note has not been returned or accounted for to the debtor. If the security has been used and proceeds realized from it, it is, of course, competent for the defendant so to show, and to claim credit upon the indebtedness to tire extent of such proceeds. But it is no defense to a suit at law that collateral security has not been returned or accounted for, especially when such collateral security has become worthless, as testified in this case. Lewis v. U. S., 92 U. S., 618; Bonser v. Cox, 6 Beavans, 84; The Ocean Bank, 20 Penn., 384.

Much less is it any defense to such a suit, when the collateral security in question was not given with the note in suit, but in connection with a previous liability which constituted the consideration for such note.

Neither is it any defense in the present case that the original liability, which constituted the consideration for the note in suit, was not evidenced by any written promise or obligation on the part either of the defendant or of his wife. There is no law to require a promise in writing for the validity of any such liability. And even if there were such a law, and such original liability were invalid in consequence of the absence of a writing to that effect, it is not apparent how such an invalidity could affect a subsequent obligation in writing having for its consideration a genuine loan and a genuine liability for money lent, and not the form of such a liability.

For these reasons we would be entirely justified in regarding the first instruction asked for by the defendant as improper to be granted. But assuming that it is intended 'to raise the question of consideration, pure and simple, which is raised by the charge of the court — whether the previous loans to the wife, unsatisfied and unpaid, as testified to in this case, was a sufficient consideration for the subsequent promise of the husband, upon which this suit is based — we may consider it in connection with the charge of the court.

The uncontradicted testimony is that the original loan of $1,000 by the plaintiff to Mrs. Ambler was made at the express request and solicitation of the defendant; that it was sought for the joint benefit of the husband and the wife; and that it was made upon the faith of property belonging equally to both. In fact, the plain indications are that, though the loan was in form to the wife, it was made in fact to the husband. The defendant’s statement that he received no part of the money, even if true in fact, and that the whole amount was used by his wife for her own use and for the benefit of her separate estate, is entirely irrelevant. .The lender had nothing to do with the disposition of the money after it came into the hands of the borrower. The transaction was one originated by the husband, where he solicited a loan for the mutual benefit of himself and his wife, where he put his wife forward as the nominal borrower because she was the nominal owner of the property of both. We are not required by any known rule of law to hold that such a transaction as this does not constitute a sufficiently valid consideration for the subsequent promise of the husband to pay the amount of the loan; and until we are confronted with such a rule, we -shall hold the liability to be in accordance with the plain principles of justice and good conscience.

If the husband was in fact, although not in form, the original obligor, his subsequent assumption of the obligation would be binding upon him. If he was originally only a joint obligor, his subsequent assumption of the whole obligation would be equally binding. If, on the other hand, the obligation was the genuine obligation of the wife in the first instance, and she contractéd with his consent, her debt became his debt; and, in fact and in law, he, and not she, was liable, unless the indebtedness was contracted with “ relation to her sole and separate property.” There is no pretence that the original loan had relation to the sole and separate property of Mrs. Ambler, or to relieve or aid it in any way. On the contrary, so far as the record shows, the loan to her was for the benefit of herself and her husband in reference to such matters as the husband is usually required by law to provide for. The contract with her was a contract which could scarcely be enforced against her or her separate property, except, of course, so far as the collateral security was concerned. It was to all intents and purposes the contract of the husband, collaterally secured by her, not by a pledge of her own separate property, but by a pledge of property that was hers only jointly with her husband.

But we may even go one step further. If we assume that the original liability in this case was the genuine liability of the wife with relation to her separate property, and not in any legal sense whatever the obligation of the husband, still the relations of husband and wife are such in law, and their mutual rights and liabilities are such, that although under the Married Women’s Act of April 10, 1869 (Rev. Stat. U. S. for the District of Columbia, Secs. 729, 730), she may contract in such manner that neither he nor his property shall be bound by her contract, and her contract shall not be enforced against him, yet -it does not follow that, for benefits, real or assumed, that may accrue to him, he may not assume her contracts or liabilities. This is not the case of assuming the indebtedness of another person. Husband and wife still remain one in law; and they have such mutual rights in the properly of each other, and the husband’s liabilities especially remain such, that we would hesitate in any case to hold that a husband’s voluntary assumption of his wife’s contracts and liabilities, accompanied by his solemn promise in writing to discharge them, was without consideration, and therefore null and void, and not binding upon him.

The defendant’s first exception, based upon the refusal of the oourt to grant the first instruction asked by him, as well as his exception to the charge of the court in that connection, we regard as untenable.

We attach no importance to the suggestion that the original indebtedness in this case had been barred by the statute of limitations, and therefore could constitute no valid consideration for the defendant’s promise. This suggestion is distinctly antagonistic to the principle upon which every new promise to pay a barred indebtedness has been sustained.

The second instruction, and the exception to the refusal to grant it, are intended to raise the question, whether, even if the consideration for these notes was in itself good and sufficient, it was adequate, inasmuch as the original obligation, if it -bore interest at all, bore interest at eight per centum only until maturity, and thereafter interest should be calculated only at the rate of six per centum per annum, whereas, in the calculation made at the time when the two notes were given, interest was charged at the rate of eight (8) per centum per annum from the date of the loan (February 15, 1884) to the date of the notes (May 1, 1888). To this contention there are several answers, any one of which would be sufficient. It is enough here to state that, if there were any force at all in the position, it would not be tenable in the present case, for the simple reason -that only one of the notes is in suit here, and that an indebtedness of $1,000, without any interest whatever, is ample consideration for a note of $600. The fact that there is another note outstanding is of no consequence in this suit; for it is not a question -of usury, but one of adequacy or inadequacy of consideration.

We are very decidedly of opinion that the rulings of the court in this case were right, and that the judgment ought to be affirmed. It is, therefore, affirmed, with costs.

Affirmed.