27 Barb. 310 | N.Y. Sup. Ct. | 1858
Unless the code, by abolishing the distinction between actions at law and suits in equity, and the forms of such actions and suits, and of pleadings theretofore existing, intended to initiate, and has initiated new principles of law, by which a class of rights and of wrongs, not before the proper subjects of judicial investigation and remedy, can now be judicially investigated and remedied, the facts stated in the plaintiff’s complaint in this action, do not constitute a cause of action, and the demurrer of the defendant to that complaint is well taken. I am not aware that any one has ever claimed for the code, or charged against the code, a mission, or purpose, so bold, novel, sweeping and dangerous. It cantiot be supposed that the abolition, in words, of the distinction between actions at law and suits in equity, by the code, was intended to break up the well settled fundamental principles and limits of cotiünon law and equitable
Although the form of the action of assumpsit, and of the pleadings therein, has been abolished, yet the obligation of contracts, and the distinction between an express and an implied assumpsit remain; and notwithstanding the code, in a large class of cases, now as before the code, it is only on the theory of an implied assumpsit, “ inferred from the conduct, situation, or mutual relations of the parties,” that justice can be enforced, and the performance of a legal duty compelled.
It is no longer necessary, and perhaps not even proper in such a case, for the plaintiff to allege in his complaint any promise on the part of the defendant, but he must state facts, which if true, according to well settled principles of law, would have authorized him to allege, and the court to infer, a promise on the part of the defendant, before the code. The form of assumpsit is no longer necessary, or perhaps even proper, in such a case; but facts sufficient to raise it, and to put it on paper, were it lawful to do so, are still necessary.
It follows, from what has been said, that the principal question raised by the demurrer in this case is, there being no express promise pretended or alleged in the complaint, whether the law implies a promise from the facts therein stated.
The action is for services rendered by the plaintiff for James Eidgeway in his lifetime, while the plaintiff was standing in the supposed relation of wife.
It is alleged in the complaint, that the marriage ceremony was solemnized in due form of law, between the plaintiff and James Eidgeway, in 1821, she believing that they were lawfully married, and living and cohabiting with him as his Wife. That on or about the 15th September, 1821, proceedings were instituted in the court of chancery, of this state, against
The plaintiff claims that the services rendered by her to James Ridgeway; in and about the management of his household affairs, and otherwise, as in the complaint set forth, were rendered at his request, and were reasonably worth forty thousand dollars: and demands judgment for that sum, with interest from 21st Bov. 1847. It is not alleged in the complaint that James Ridgeway, in his lifetime, ever knew or supposed, after the last marriage ceremony, that the plaintiff was not his lawful wife; nor is it alleged that when his first supposed marriage with the plaintiff took place, he knew that his wife Catharine was living, and he unable to contract a legal marriage with the plaintiff.
Bo doubt, from the time of the first marriage ceremony to the institution of the suit for divorce, and from the time of the second marriage ceremony until his death, James Ridg- ' way and the plaintiff both supposed they were lawfully married, and that he lived and died supposing the plaintiff was his lawful wife. Bow, after his death, upon the assumption that his supposed marriage was not legal, will the law permit us, or authorize us, to turn this supposed relation of husband and wife into the relation of master and servant, and thus infer or imply a promise on the part of James Ridgeway, in his life, to pay, and an expectation on the part of the plaintiff to receive pay, for the services rendered by the plaintiff while so standing in the supposed relation of husband and wife ? The very ground upon which the plaintiff’s case appeals so strongly to the sympathies of the court, forbids any such fiction, inference, or implication. Her own (no doubt truthful) story of her long, devoted) faithful love, and services, as a wife and
Davies, Clerke and Sutherland, Justices.]
True, the law will not presume that work or labor performed 'as a servant or laborer, was voluntary, and performed without any view to compensation; but the law cannot presume that the domestic and household work and services of a wife for a husband are performed with the view to pay as a servant or laborer.
The law would do- injustice to the plaintiff herself, by implying a promise to pay for these sendees; and respect for the plaintiff herself, as well as for -the law, compels us to infer and hold, that these services were performed not as a servant, with a view to pay, but from higher and holier motives; and that therefore her complaint does not constitute any cause of action.
The order of the special term, overruling the demurrer, must be reversed, and the defendant must have judgment on the demurrer.