190 Iowa 1308 | Iowa | 1921
— It is thought by appellees that the allegations of the amendment are no broader than those in the original petition; that they are substantially the same. We think the amend-
1. Appellees raise the question, and contend that the contract, as alleged, is within the statute of frauds, under Code Section 4625; and they say that, though the objection under such statute is to the testimony, the objection may be raised by demurrer, as in this case. On this last proposition they cite Wiseman v. Thompson, 94 Iowa 607; Graves v. Clark, 101 Iowa 738. That the contract is within the statute, appellees cite Frazer v. Andrews, 134 Iowa 621; Gregory v. Bowlsby, 115 Iowa 327. It is conceded by appellant that the contract is an ante-nuptial contract, — they so denominate it in the argument. It is contended by appellant, as to this point, that, whatever the rule may be at law, in an equitable action for specific performance, a court of. equity is not bound by the rigid rules of law as to the statutory requirements of the statute of frauds, or on the question of consideration. The contention is that equity will not permit the statute of frauds to be made an instrument for the perpetration of fraud, and that such would be the effect if, plaintiff having performed her part of the contract, the other party to the contract, or his estate, is not required to perform. They cite and quote from Pomeroy on Equity, without giving the volume or page; also, Moore v. Allen, 26 Colo. 197, 200 (77 Am. St. 255); Peek v. Peek, 77 Cal. 106, 110; Burden v. Sheridan, 36 Iowa 125; 36 Cyc. 649; Code Section 4626; Devin v. Himer, 29 Iowa 297; Stem v. Nysonger, 69 Iowa 512. The last two eases and the statute are in regard to the exception to the provisions of Section 4625, where the purchase money, or any portion thereof, has been received by the vendor, or when the vendee, with the actual or implied consent of the vendor, has taken and held possession under the contract, etc. They also cite Larsen v. Johnson, 78 Wis. 300 (47 N. W. 615). In that ease, there was an oral contract entered into by the wife
2. Counsel for either side concede that they find no Iowa case directly in point on the questions they both concede to be the main point in the case. Appellant says that husband and wife may contract with each other as to any matter outside the marriage relation, and the cases they cite are upon that theory. It seems to us that thereby appellant, in effect, concedes the weakness of their position, because we do not understand ap
“It is further claimed that the agreement was without consideration, because it was the marital duty of A. C. Reticker to perform the services. We cannot accede to this doctrine. That it is the duty of the wife, as ‘helpmeet,’ to attend, without compensation, to all the ordinary household duties, and labor faithfully to advance her husband’s interests, is true. Tet it certainly is not her duty, unless she desires to incur it, to undertake the boarding of a large number of prisoners who may for the time being come under the charge of her husband. These defendants had the undoubted right to contract with each other
See, also, Tucker v. Anderson, 172 Iowa 277, 284, where the wife performed services for a person other than her husband, with her husband’s consent, he making no claim for the money due her under the contract with the third party. Ford v. Curd, 150 Ky. 738 (43 L. R. A. [N. S.] 685, 691, and cases cited in note).
Appellant also cites, to the same proposition, In re Estate of Cormick, 100 Neb. 669, where, following marriage, the wife was employed by the husband in the capacity of a private detective, and assistant to him. Her duties were to look after all correspondence, make out reports, outlining instructions to operatives, and so on. The court said that an express contract between husband and wife that she shall receive reasonable compensation for extra and unusual services rendered him, outside of her domestic duties, is valid, and, when established by a preponderance of the evidence, is enforcible against him or his estate. Also, to the same effect, Nuding v. Uriah, 169 Pa. St. 289, cited in the Cormick case, holding that a husband may contract directly with his wife for the performance of extra and unusual services in the course of his business, outside the family relation, etc. Another case to the same effect, where a husband contracted to pay his wife for services as a clerk in his store, was held valid. Plaintiff is demanding all of the property of deceased in full performance of the contract, which she says she has fully performed on her part, because of the marriage and her nursing, care, and work for deceased from the time of the making of the contract until her husband’s death; but, for about eight years of that time, she was his wife, and is claiming for her services as such. Before she can recover as for full performance, she must show that she has performed her contract in its entirety, and that her services after the marriage were such as she was entitled to contract for, and to demand
Bartley v. Greenleaf, supra, was - an action in equity, like the one at bar, to enforce the specific performance of a contract. In that case, as here, the agreement was that plaintiff was to keep, care for, and look after decedent during his life, and in consideration thereof, he was to devise and bequeath his property to her. Decedent died before the date set for the consummation of the marriage. It was held, as before stated, that this was a marriage contract; and the court further said that, if it be held that the allegations of the petition are broad enough to include a consideration in addition to that of marriage, still the marriage must be held to be a part of the consideration, and under such circumstances, specific performance will not be decreed. In the instant case, the marriage was consummated; but if it be thought, as contended by appellant, that the services to be per
‘ ‘ There was a pervading and irreconcilable conflict between them [the contract to perform services and the marriage contract], and-hence the presumption of law is that the later contract so modified the earlier as to abrogate or supersede it. While there may be antenuptial contracts made in view of marriage, and to be enforced thereafter, there can be no modified or conditional marriage contract, whereby the services of the wife are excepted from the usual effect of marriage. Necessarily, all marriage contracts are alike in their legal operation, which
Strictly speaking, the contract set up by plaintiff is not an antenuptial contract, though appellant, in argument, calls it such. Nor is it, strictly, a marriage settlement. The action is brought to enforce, by specific performance, a parol contract, the terms of which have been stated. Michigan Trust Co. v. Chapin, 106 Mich. 384 (58 Am. St. 490), is to the same effect, and holds that such a contract is contrary to public policy, and that the promise to pay her for such services, which the law made it her duty to perform, without consideration, is void and unenforcible. See, also, In re Estate of Cormick, supra, cited also in L. R. A. 1917D 265, with annotations. In that case, it was held that an express contract between husband and wife that she shall receive compensation for extra and unusual services rendered him outside of her domestic duties is valid and enforeible. It is said in the annotation, at page 269,- that:
“It seems to be unquestioned that at common law a contract by a husband to pay his wife for her services was invalid. * * * The strictness and rigidity of the common-law rules in this respect, however, have been greatly relaxed. * * * As a consequence of this relaxation, the now important question is as to whether or not these various statutes * # # so enlarge the rights of a wife as to permit her to validly contract with her husband for her services in any manner, and if so, as to what kind or kinds of services. Upon these questions there is a wide divergence of conclusion, but this is largely due to the variations in the * * * different acts. * * * Nevertheless, it seems to be universally conceded, even in those jurisdictions which have very broad statutes, that a married woman, unless permitted by positive legislative enactment, cannot contract with her husband for services which are imposed by her marital relations, the courts maintaining, not only that it would be against all public policy to uphold such contracts, but that they are without consideration. ‘Whatever services a wife renders in her home for her husband cannot be on her sole and separate account. They are rendered on her husband’s account, in the discharge of a duty which she owes him or his family, or in the discharge of a duty which he owes to the members of his household. It would operate dis
We may say in passing, too, that to uphold such contracts Avould open the door to speculations and to fraud upon heirs, as Avell as creditors, etc. See, also, Coleman v. Burr, 93 N. Y. 17 (45 Am. Rep. 160), holding that a statutory authorization to a married woman to perform any labor or service on her sole and separate account, and to hold the earnings therefrom as her sole and separate property, did not enable a married woman to contract with her husband for compensation for services rendered in their home, which Avere in line with duties owed to the house, because of the marital relation, the ground being that such services were not rendered upon “her sole and separate account.” In that case, the services rendered were the taking care of the husband’s invalid mother, who lived as a member of his family, the court holding that such services were within the line of duties arising from the marital relation. We find similar language in Miller v. Miller, 78 Iowa 177, 183. In that case, the wife brought action against her husband to recover money alleged to be due her on a written contract, whereby the parties mutually agreed to ignore and never allude again to former matters of dispute between them, and to refrain from faultfinding and to behave respectfully and treat" each other fairly, and live together as husband and wife, and faithfully observe the marriage relation, and live virtuously, and in Avhich she agreed to keep her home ahd family in a comfortable and reasonably good condition, and the husband agreed to provide for the necessary expenses of the family, and, in addition thereto,
“It needs no argument to show that such inquiries [as to whether each had performed their several duties, according to the contract] in public would strike at the very foundation of domestic life and happiness. Public policy dictates that the door of such inquiries shall be closed; that parties shall not contract in such a manner as to make such inquiries essential to their enforcement. * # * In the very nature of things, a demand for such a payment would engender ill feelings and provoke complaints as to conduct that would otherwise pass unnoticed, or at least without attention. An effort at compulsory payment would almost certainly bring before the courts allegations of misconduct, based upon incidents of little moment, to be magnified or belittled in the interest of success in court.”
The opinion quotes from Bishop on Contracts (2d Ed.), Section 948, in part as follows:
“If the wife spends an afternoon in visiting her mother, instead of- making jellies, shall the husband bring her into court to determine the abatement to be made from the sum he had promised her for work in keeping his boarding house? Shall there be a law suit to settle the allowance for attending the baby, which is partly Ms and partly -hers ? * * * Shall the judge of a court be employed in instructing the jury how to adjust the account between them?”
We are of opinion that, in so far as plaintiff relies upon services rendered by her for her husband, after the marriage, as full performance of her contract, they were without consideration, and contrary to public policy, and that specific performance may not be had. In so far as the contract has been performed by the consummation of the marriage, we will assume that her motives in entering into the marriage itself were not mercenary. We will assume, also, that deceased performed Ms duty as a husband in giving her support and a home, in return for services rendered by her for Mm. Of course, the husband could not demand compensation of his wife for the per
3. Code Section 3477-a authorizes recovery by a woman or by her estate for personal injury. In such a case, she may recover for loss of time, medical attendance, and other expenses incurred as a result thereof, in addition to any elements of damages recoverable by common law; and if such injury causes death, her administrator may sue and recover for her estate the value of her services as a wife or mother, or both, in such sum as the jury may deem proportionate to the injury resulting in her death, in addition to such damages as are recoverable by common law; and so on. The purpose of this statute was probably twofold: First, to enlarge the rights of married women; and second, to authorize a recovery in one action, rather than two actions, as formerly, wherein she could sue for a part of the damages, and her husband must sue for others. Under the statute, the husband is precluded from any recovery, unless, possibly, the right of consortium. This statute has been passed upon in Jacobson v. Fullerton, 181 Iowa 1195; Bridenstine v. Iowa City Elec. R. Co., 181 Iowa 1124; Woodard v. City of Des Moines, 182 Iowa 1102. This statute has reference to recovery from third persons. We find nothing in it enlarging a married woman’s rights so as to permit her to contract with her husband for compensation for services inherent in the contract of marriage. Appellant does not so claim. We are of opinion that the ruling on the demurrer by the district court was right, and the judgment is — Affirmed.