
    Daniel L. Robertson & another vs. Elizabeth B. Rowell & another.
    Middlesex.
    December 5, 1892.
    January 6, 1893.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Barker, JJ.
    
      Promissory Notes — Written Agreement — Indorsement of Married Woman — Consideration.
    
    On a bill in equity brought against a married woman on three promissory notes signed by her husband, payable to her order, and bearing her name upon the back under the words, “I hereby charge my separate estate with the amount of this note,” it appeared in evidence that a written agreement was made between the plaintiff and the husband of the defendant referring to the notes, and providing that, if paid to the plaintiff, they should be a settlement in full of all claims between the parties to date ; but if any of them should not be paid, the account should stand as stated in the plaintiff’s ledger. A week or two after the agreement and notes were signed by the husband and left with the plaintiff, the husband brought his wife to the office of the plaintiff, and she put her name on the back of each of the notes under the words referred to. The plaintiff was away, but had left the papers with his bookkeeper. The notes were used by the plaintiff according to the terms of the written contract. Held, that evidence of an original oral agreement that the defendant was to lend her credit to her husband was competent evidence in connection with the other facts to show that the papers when left with the plaintiff were not delivered, but merely left to await completion; that the case was one of an accommodation indorsement, that the words written over the signature of the defendant bad no tendency to show the nature of her obligation, and that, if she made any kind of a contract, her separate estate would be chargeable for the performance of her undertaking as well without these words as with them.
    The cases which hold that knowledge of the consideration by one putting his name on a note for the accommodation of another is necessary to bind him, are where a note had previously taken effect as a contract, and a new and independent consideration is required for the new contract.
    Bill in equity, seeking to hold Elizabeth B. Rowell, a married woman, upon three promissory notes signed by her husband, payable to her order, and bearing her name upon the back under the words, “ I hereby charge my separate estate with the amount of this note,” and to reach and apply in payment thereof thé income of a trust fund held for her benefit.
    Hearing before Allen, J., who ordered a decree for the defendant, dismissing the bill upon the ground that there was no consideration for the undertaking of the defendant Rowell, and reported the case for the consideration of the full court.
    
      E. I. Smith, ( C. M. Ludden with him,) for the plaintiffs.
    
      W. H. Powers, (N. Currier with him,) for the defendants.
   Knowlton, J.

The only question reserved by this report is whether the bill should be dismissed on the ground that the notes, as against the defendant Elizabeth B. Rowell, were without consideration. A written agreement was made between the plaintiff Robertson and William B. Rowell, the husband of the female defendant, referring to the notes set out in the bill, and providing that, if paid to the said Robertson, they should be a settlement in full of all claims between the parties up to that date; but if any of them should not be paid, the account should stand as stated in the ledger of Robertson. The notes were signed by William B. Rowell, and made payable to the order of Elizabeth B. Rowell, and on the back of each were written the words, “ I hereby charge my separate estate with the amount of this note.” The agreement and all the notes were signed by William B. Rowell, and were left with Robertson. A week or two after-wards Mr. Rowell brought his wife into the city, and she went with him to the office of Robertson and put her name on the back of each of the notes under the words written there. Robertson was away, but had left the papers with his bookkeeper.

It is evident from the form of the notes, and from the written agreement, that they were left incomplete, and were not designed to be held as' contracts until signed by Mrs. Rowell. They were payable to her order, and were to be indorsed by her before they would be in a condition to be used by Robertson. We do not understand the court to find that the papers were delivered as binding contracts when they were left with Robertson, but merely left with him to be held for completion by the signature of Mrs. Rowell, and for future delivery. It is apparent that the transaction was inchoate until the notes were signed by her and the papers subsequently delivered to take effect as contracts. It is also manifest that she intended to lend her credit to her husband. It is found that it was a part of the original agreement that she should do so. That there was such an oral agreement is competent evidence, in connection with the other facts, to show that the papers, when left with Robertson, were not delivered, but merely left to await completion. When completed, they were to be used by him according to the terms of the written contract, and they were in fact so used. It was a common case of an accommodation indorsement. The words written over the signature of Mrs. Rowell had no tendency to show the nature of her obligation. They were entirely consistent with any kind of an obligation, and as consistent with one as another. Without them, her signature constituted an ordinary indorsement; with them, it was neither less nor more. If she made any kind of a contract, her separate estate would be chargeable for the performance of her undertaking as well without these words as with them. Pub. Sts. c. 147, § 2.

The case differs from Tuttle v. Bartholomew, 12 Met. 452, and Belcher v. Smith, 7 Cush. 482, in which the signature on the back of the note was appended to the special and peculiar contract of guaranty.

If there was a sufficient consideration for the notes between Robertson and her husband, she was bound, for she signed before the notes were used, knowing that her husband was to use them. There was a valuable consideration moving from Robertson in his implied promise contained in the writing not to sue on the account until the maturity of the first note, nor after-wards if the notes were paid when due. It was immaterial whether she knew the nature of the consideration or not. It was enough that she gave her husband the use of her name and credit in his transaction with a third person. Chicopee Bank v. Chapin, 8 Met. 40. Stoddard v. Kimball, 4 Cush. 604, and 6 Cush. 469. Hilton v. Smith, 5 Gray, 400.

The cases which hold that knowledge of the consideration by one putting his name on a note for the accommodation of another is necessary to bind him, are where a note had previously taken effect as a contract, and a new and independent consideration is required for the new contract. Ellis v. Clark, 110 Mass. 389. Pratt v. Hedden, 121 Mass. 116. Rogers v. Union Stone Co. 130 Mass. 581. In such cases, the new contract being between the holder of the note and a new party, if the consideration moves from the holder it must be known to the signer, or there is no mutuality, and it is not a consideration between the parties to the contract.

We are of opinion that, on the facts reported, there was a good consideration for the promise of the female defendant, and the case must stand for a further hearing. So ordered.  