62 Barb. 92 | N.Y. Sup. Ct. | 1872
We are referred to no case arising in our own courts, where the questions now before us have had adjudication. The questions are elemental, and seem to admit of but little conflict. Two legal questions of this character are presented, upon each of which the agreement set forth, is claimed to be void. First, that the agreement is post obit in its character, and therefore void as being against public policy; and second, that the agree
1st. Post obit agreements, or bonds, are those given by a borrower of money, by which he undertakes to pay a large sum, exceeding the legal rate of interest, on or after the death of a person from whom he has expectations, in case of surviving him. This character of agreements are not always 'void. They are so when it is shown to the courts that the contracts are inequitable or unconscientious. When advantage has been taken of the weakness, necessity or ignorance of another, or such extraordinary disparity exists between the sum advanced and the sum to be received, as clearly appears to be contrary to good conscience, the courts will declare the agreement fraudulent and void, as being against the policy of the law. They partake generally of the nature of a wager, and contain no principle by which the value of the chances may be calculated, so as to enable the court to ascertain whether they are reasonable or unconscionable. But when it is apparent from the intrinsic nature and subj ect of the bargain itself, that it is such as ho man in his senses, not under delusion, would make on the one hand, and as no honest and fair man would accept, on the other, the agreement will be declared inequitable and unconscientious. If this does not appear from the contract itself, it must be proved; and when proved, the court will still allow a recovery by the lender, and give him relief, by directing judgment for so much money as shall be equal to the principal received by the borrower, and interest. (Boynton v. Hubbard, 7 Mass. 119.) Such contracts are not per se nullities. The case at bar partakes somewhat of this character of being a post obit agreement, in that it was for services, care, diligence, aid and attention rendered, and expenses furnished in 1846; to be paid for by quite a large sum of money at the death of the person named. But the case is relieved from many of the odious features
But the learned judge placed his decision to nonsuit upon the other feature of the case, that the agreement in question was a marriage broJcage contract, and therefore void.
2d. This being a novel case in our courts, it becomes our duty to examine it with regard to that question. We have said that the case depends upon elementary law. In this respect the civil law and the common law of England are •found to differ. The writers upon jurisprudence in this country have generally followed the modern common law of England.
The civil law, as drawn from the code of Justinian, allowed contracts of this kind to be made by proxy; by marriage brokers, match makers, called proxenetce, who were allowed to receive rewards for their services, like other brokers, to a certain limited extent. (Code Just., lib. 5, tit. 1, pp. 1, 6.) And at an early period of the history of English jurisprudence, these proxenetce plied their vocation in that country, and were tolerated. (Story's Equity Juris. §260.) The policy of the civil law seems to have been that all aid rendered in encouraging, and the establishment óf marriages, was for the good of the nation, and •promotive of public morality; inasmuch as it discouraged fornication, adultery and concubinage; that therefore, agencies by way of matchmakers, brokage, proxenetce, were productive of good, rather than evil results. The policy of English law was, that the effect of such agencies and brokage, was the encouragement of influences of a perni
But it seems that the ground upon which the courts will interfere in cases of this kind, is not upon the ground or idea of damage done to the individual concerned, but upon considerations of public policy, and “hence,” says the same learned judge, “ every temptation to the exercise of an undue influence, or a seductive interest in procuring a marriage, should be suppressed; since there is infinite danger that it may, under the disguise of friendship, confidence, flattery or falsehood, accomplish the ruin of the hopes and fortunes of most deserving persons, especially of females.” (Eq. Jur. §261.) In the case of Drury v. Hooke, (1 Vern. 412,) Lord Chancellor King said, “that this character of agreements was a sort of kidnapping into conjugal servitude, and was in no case to be countenanced.’.’ Chief Justice Parsons, in Boynton v. Hubbard, (7 Mass. 112,) said: “ These contracts are void, not because they are fraudulent upon either party, but are yet void because they are a fraud upon third persons, and because they are a public mischief, as they have a tendency to cause matrimony to be contracted on mistaken principles, and'with,out the advice of friends, and they are relieved against as a general mischief, for the sake of the public.”
It would hardly seem to be necessary to multiply American authorities to sustain this proposition. It is recognized by Judge Willard, in his work on Equity Jurisprudence, (p. 210.) And in England. (Fonblanque Eq. Ch. b. 1, § 10. 3 P. Wms. 76.)
The public policy of thus protecting ignorant or credulous persons from being the victims of secret contracts of this sort, is therefore clear; and as Judge Story says, “ the surprise is not that the doctrine should have been established in a refined, enlightened and Christian country, but
Milla', P. J., and P. Potter and Balcom, Justices,]
This action was brought to recover $2000 and upwards, on a marriage brokage contract, which was void on the ground of public policy. The plaintiff was not entitled to recover, and was properly nonsuited. I not only agree to the conclusion arrived at by Brother Potter, but I concur in his opinion in the case. He has gone over the whole case, and it is unnecessary for me to say more than that the plaintiff’s motion for a new trial must be denied, with costs.
Miller, P. J., also concurred.
Hew trial denied.