185 A.D. 590 | N.Y. App. Div. | 1918
This action was brought to recover damages amounting to the sum of $67,000 for the breach by defendant of a contract entered into by him with plaintiff, his wife. The complaint shows that the parties were married in the city of New York on May 23, 1907; that there has been no issue of the marriage; and that in January, 1912, the parties separated for sufficient cause, and have never since lived together. The contract between the parties is set forth as follows:
“ Fifth. That while plaintiff and defendant were living separate and apart, as aforesaid, and in or about the month of February, 1913, in the said City of New York, plaintiff and the defendant entered into an agreement, subsequently ratified and confirmed, whereby, in substance and effect,
It is further alleged that on December 20, 1913; plaintiff duly obtained a decree of absolute divorce from defendant, after he had appeared and answered, in the District Court of the Second Judicial District of the State of Nevada, in and for the county of Washoe, upon the ground of cruel and inhuman treatment; that plaintiff relying on defendant’s financial ability and good faith and relying on his promise above set forth, did not ask for alimony in her divorce action, nor seek to have same provided for in the decree; that plaintiff has duly performed all the terms and conditions of the said agreement on her part to be performed; that defendant paid plaintiff’s reasonable counsel fees in her divorce action, and at first contributed the sum of $400 monthly towards her support, but gradually lessened the amount, in performance of the agreement, but since December 1, 1915, defendant has entirely neglected, failed and refused to contribute anything to her support, although as defendant knows she has no means of her own for her support and maintenance; that defendant is in receipt of an income of not less than $35,000 per year; and that plaintiff was born in the city-of New York on August 24, 1879, and has been and is, in good health, and by reason of the premises and of her expectancy of life duration and by reason of the failure and refusal of defendant to keep and perform his contract, she has sustained great damages in the sum of $67,000. The answer of the defendant, among other things, denies the making of the agreement sued on, alleges that there was no consideration therefor and sets up the Statute of Frauds as a separate defense.
Plaintiff testified to an agreement with defendant by which
It is now argued that the recovery is unjustified, inasmuch as it was based solely on the plaintiff’s age, health and expectancy of life, and no account was taken of the fact that under the agreement sued upon the payments by defendant were to cease upon plaintiff’s remarriage. In other words, the jury awarded damages based solely on the probable duration of plaintiff’s life, whereas the period for which she was entitled to recover was solely that of her remaining unmarried. Whatever force there may be in this contention, it is too late to raise it for the first time upon appeal. It was never presented to the trial court by proper objection and exception; it was never called to the attention of that court by any exception to the charge or any request to charge, when the jury were instructed as to the elements entering into the computation of damages, omitting any reference to the factor of remarriage. The objection is not now available to defendant.
Defendant did raise upon the trial, however, in every possible way the question of plaintiff’s right to recover herein upon the theory of an entire contract, for the breach of which she could recover all her damages in one action, instead of being compelled to sue for installments as the same became due. At the time of the commencement of this action some
The authorities are not in accord upon the proposition.
Thus in Schell v. Plumb (55 N. Y. 592), relied upon by the trial court as the controlling decision 'Upon its denial of the motion to dismiss the complaint at the close of plaintiff’s case, it was held that an agreement by one party to support another during life is an entire continuing contract, and upon a total breach thereof the latter may recover full and final damages, i. e., not only the expenses of support up to the time of trial, but also the prospective expense during fife. In its opinion the court said that even at that time the authorities were somewhat conflicting, but cited Fish v. Folley (6 Hill, 54); Shaffer v. Lee (8 Barb. 412), and Dresser v. Dresser (35 id. 573) as supporting its conclusion that where a contract was entire and continuing, a total breach put an end to it and gave the right to recover an equivalent in damages, which was the present value of the contract. Schell v. Plumb (supra) was cited with approval in Wakeman v. Wheeler & Wilson Mfg. Co. (101 N. Y. 205) and Pakas v. Hollingshead (184 id. 211). In the latter case the court said: "We think that the cases, so far -as we have been able to examine them, are all the other way, and are to the effect that inasmuch as there was a total breach of the contract by the defendants’ refusal to deliver, the plaintiff cannot split up his demand and maintain successive actions, but must either recover all his damages in the first suit or wait until the contract matured or the time for the delivery of all the goods had arrived. In other words, there can be but one action for damages for a total breach of an entire contract to deliver goods, and the fact that they were to be delivered in instalments from time to time does not -change the general rule.”
In Pierce v. Tennessee Coal, Iron & Railroad Co. (173 U. S. 1) it was said that " The recent tendency of judicial decisions in this country in actions of contract as well as in actions of tort, has been towards allowing entire damages to be recovered,
“ In Parker v. Russell, 133 Mass. 74, the declaration alleged that in consideration of a conveyance by the plaintiff to the defendant of certain real estate, the defendant agreed to support him during his natural life. * * * Mr. Justice Field in delivering judgment said: ‘ In an action for the breach of a contract to support the plaintiff during his Ufe, if the contract is regarded as still subsisting, the damages are assessed up to the date of the writ, and not up to the time when the verdict is rendered. * * * But if the breach has been such that the plaintiff has the right to treat the contract as absolutely and finally broken by the defendant, and he elects so to treat it, the damages are assessed as of a total breach of an entire contract. * * * When the defendant, for example, absolutely refuses to perform such a contract after the time for entering upon the performance has begun, it would be a great hardship to compel the plaintiff to be ready at all times during his life to be supported by the defendant, if the defendant should at any time change his mind; and to hold that he must resort to successive actions from time to time to obtain his damages piecemeal, or else leave them to be recovered as an entirety by his personal representatives after his death.’ ”
This case was followed in Roehm v. Horst (178 U. S. 1).
In Adenaw v. Piffard (202 N. Y. 123), however, the Court of Appeals said: “ In Kelly v. Security Mutual Life Ins. Co. (186 N. Y. 16) Judge Vann said: ' The rule that renunciation of a continuous executory contract by- one party before the day of performance gives the other party the right to sue at once for damages, is usually applied only to contracts of a special character, even in jurisdictions where it obtains at all ’ (p. 19), and he points out that in some States the principle is not recognized in any way whatever, saying that in this State it seems to be limited to contracts to marry, contracts for personal services, and contracts for the manufacture or sale of goods, A majority of the court, however, do not
The case now before us is not, however, exactly like any of those heretofore cited. Here we have no absolute repudiation of a contract, but part performance followed by a failure to pay further installments due thereunder. Here we have no mere vague or indefinite promise to contribute an undetermined sum towards the support of another, but an agreement to pay a definite minimum amount monthly. I believe that this ease comes within the rule laid down by this court in
I do not believe, however, that the complaint herein should be dismissed. I think we may treat this action, under the pleadings, as one brought to recover whatever amount was due under the agreement at the time the suit was commenced. Plaintiff mistakenly, as we think, asked for too much, for she sought a single recovery as for a breach of an entire continuing contract. What she was entitled to recover were the installments then due. This amount she should have an opportunity of establishing, and if any amendment of the complaint be deemed necessary to that end, she has her means of relief at Special Term. But we think the court should keep jurisdiction of the action, that she may have, whatever judgment she is properly entitled to recover.
The judgment and order appealed from will be reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Laughlin, Smith and Shearn, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.