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plaintiff's claim was entirely justified, and that no such amount was due as was exhibited in that claim. A materialman cannot take advantage of the benefit of this section of the Mechanics' Lien law for the purpose of holding the owner liable for the contractor's debt, after the owner has expressed dissatisfaction as to the correctness of the claim, unless he proves at the trial that the claim was, in fact, correct, or as nearly correct as it was then reasonably possible to make it, and that, therefore, inferentially, the dissatisfaction of the owner was without solid support.

It is argued on behalf of the plaintiff that if the owner is satisfied of the correctness of a part of the materialman's demand, he is bound to retain for the benefit of the latter sufficient moneys to pay the same, and that if he fails to do so the materialman has a right, under the third section of the Mechanics' Lien law, to recover such portion from him. The answer to this contention is that the statute makes no such provision.. The demand referred to in it is to be of the amount which the materialman claims to be due to him. The satisfaction of the owner must be as to the correctness of this demand. He is not required to investigate as to the correctRess of a part thereof; nor has he any authority under the statute to retain out of the moneys due to the contractor a sum sufficient to pay such part as he is satisfied is justly due. For this reason also the judgment should be reversed.

It appeared in the proofs that after service of the stop notice the defendant paid to the Conrady-Stevens company all moneys in his hands due under the primary contract, and took from them an indemnity bond to protect him against any liability to the plaintiff; and it is insisted that by doing so he estopped himself from denying the existence of such liability. We think not. He could not absolve himself from liability to pay the plaintiff's just demand by such a course of action as that indicated; but the mere payment to the contractor of the moneys due under the contract could not operate to create a liability in favor of the plaintiff which, until such payment was made, had no legal existence.

The judgment under review will be reversed.

92 N. J. L.

Central Savings Bank Co. v. Barber.

THE CENTRAL SAVINGS BANK COMPANY, A CORPORATION, PLAINTIFF, v. BERNICE BARBER AND GEORGE S. BARBER, DEFENDANTS.

Submitted July 3, 1918-Decided November 11, 1918.

An inchoate right of dower is a valuable, subsisting, separate and distinct interest, the enlargement of the value of which is a legal consideration which will support a promissory note by a married woman even though she signs the note as surety, accommodation maker or endorser for her husband.

On rule to show cause.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and BERGEN.

For the plaintiff, King & Vogt.

For the defendant Bernice Barber, Randolph Perkins.

The opinion of the court was delivered by

SWAYZE, J. In 1913 the defendant Bernice Barber, and George S. Barber, her husband, signed a note for $5,000, to which George's mother also became a party. The Central Savings Bank Company advanced the amount to George. When the note came due George's mother paid $2,500, and the note in suit was discounted to take care of the difference. Both notes were signed in this state. Mrs. Barber received no cash. The plaintiff is an Ohio bank; the notes were delivered in Ohio, and the $5,000 was borrowed for and applied to the payment of a mortgage on real estate, the title to which was in Mr. Barber. Mrs. Barber testified that the amount and date were blank when she signed, and that she signed at her husband's request. The learned trial judge told the jury that the signature on the blank paper delivered by the person making the signature in order that the paper might be converted into a negotiable instrument, operated as

Central Savings Bank Co. v. Barber.

92 N. J. L.

a prima facie authority to fill up such paper for any amount, but it must be filled up strictly in accordance with the authority given within a reasonable time; but if after completion it was negotiated to a holder in due course, it was valid and effectual for all purposes and he might enforce it as if it had been filled up strictly in accordance with the authority given in a reasonable time; and the judge left it to the jury to say whether the bank was a holder in due course. The charge was a mere statement of section 14 of the Negotiable Instruments act, which does not differ from the principle of Mechanics Bank v. Chardavoyne, 69 N. J. L. 256. The court refused to charge that an inchoate estate of dower is a valuable, subsisting and separate and distinct interest, the enlargement of the value of which will support a promise to pay and is a legal consideration for the promise to pay by the defendant Bernice Barber.

There is no suggestion in the case that the filling of the blank for the amount of either the $5,000 note or the $2,500 renewal and the blank for the date in the latter was not in pursuance of Mrs. Barber's authority to her husband. She testifies that Mr. Barber received $5,000, that just previous to its receipt she signed a document like the note in suit, that she thinks the $5,000 must have come as a sequence of signing that document because he paid the mortgage.

The note in suit is a renewal for an unpaid balance of the $5.000 note. If the blank existed when Mrs. Barber signed, it was necessary that it should be filled for $2,500, the amount unpaid on the $5,000 note. There can, of course, be no question that the blank for the date was properly filled. It was the date when the renewal was effected. The question of reasonable time is out of the case. The production and proof of the note by the bank and proof that it was unpaid, made a prima facie case and entitled the bank to a verdict unless a defence was established. The defence was that Mrs. Barber had been assured by her husband that she would not be called. on to pay the note, and that she signed without consideration. and as accommodation maker only. Her husband's assurance is no defence and is not now urged. There remain only the

92 N. J. L.

Central Savings Bank Co. v. Barber.

alleged lack of consideration and the accommodation character of the note. The statute permits the consideration to be inquired into between the original parties, and, since the bank is payee, applies to this case. The trial judge properly permitted such inquiry. The question as to the liability of a married woman was argued in the briefs, chiefly as if it turned on whether the contract was made in Ohio or New Jersey. This was not the decisive question. It was settled, prior to the enlargement by statute of the powers of married women to contract, that where husband and wife unite in giving a note to raise money to pay off a mortgage on lands of the husband, a consideration moves to the wife. "She has," said Chief Justice Beasley, "a valuable, though contingent, interest In the property of her husband, which interest is encumbered by this mortgage, and the money borrowed was to be applied so as in some degree to exonerate such interest. In testing the wife's right to act as a feme sole, the only question is whether she is to derive any benefit from the transaction, for if such benefit is to accrue, her right to bind herself is unquestionable." He adds that the court cannot attempt to measure the adequacy of the interest which has induced her action. Perkins v. Elliott, 23 N. J. Eq. 526, 534, 535. The plaintiff's request to charge was a mere affirmation of the rule of Perkins v. Elliott. The rule which was applicable to the separate estate of a married woman before the statutory enlargement of her power to contract is applicable under the statute. Under that rule the bank is a holder in due course. A verdict should have been directed for the plaintiff, by reason of the failure of the defendant to meet the prima facie case arising out of the production and proof of the note.

The rule must be made absolute.

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Herzog's Cloak & Suit Co., Inc., v. Fedorko.

92 N. J. L.

HERZOG'S CLOAK AND SUIT CO., INC., APPELLANT, v. JOSEPH FEDORKO, RESPONDENT.

Submitted July 3, 1918-Decided November 11, 1918.

A bailee entrusted with goods to be made up, who is to be paid for his labor, has a property in the goods which is subject to levy, and a constable levying thereon by virtue of process against the bailee has a lawful possession which makes necessary a demand for the goods before the bailor can maintain replevin.

On appeal from the Hudson Circuit.

The plaintiff had entrusted certain cloths and linings to one Weiner to be made into ladies' suits and returned to the plaintiff. The title to the material, it is said, was to remain in the plaintiff, and Weiner was to be paid for his work. The defendant, Fedorko, a constable, seized the goods by virtue of writs of attachment against Weiner out of the Bayonne District Court. The plaintiff brought this suit in replevin against Weiner and the constable. Weiner is not shown by the record to have been summoned, to have appeared or answered. The constable answered, setting out the attachments and that he had levied upon the goods and chattels of Weiner described in the complaint, and that they were the property of Weiner and not of the plaintiff. The trial judge directed a verdict for the defendant because no demand was made for the return of the goods before this action was brought.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the appellant, Theodore Rurode.

For the respondent, Alfred Brenner.

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