180 Mass. 170 | Mass. | 1901
The action is in contract to recover ten instalments of 174.99 each, alleged to be due to the plaintiff in part for her own support and in part for that of her minor son, under a sealed instrument executed by herself and the defendant in the year 1896. After a ruling that so much of the demand as related to the support of the son was barred by the defendant’s discharge in bankruptcy, and a finding for the plaintiff for so much as related to her own support, and an order of judgment for the plaintiff upon the finding, the case comes here upon a report which states some facts that seem to have been admitted or not disputed at the trial, and upon the evidence there introduced. The court below refused to rule that upon all the evidence the plaintiff was not entitled to recover, and also refused to rule that the discharge in bankruptcy was not a bar to any part of the claim; and ruled that the discharge was a bar to so much of the demand as was alleged to be due for the support of the son. By the terms of the report, if the rulings were right the judgment is to be affirmed; otherwise, such judgment is to be entered as law and justice may require.
The defendant’s contentions are that his discharge in bankruptcy is a bar to the suit, and also that the agreement sued upon was without consideration; and further, that the agreement is void, because in substitution for an earlier one founded upon a collusive arrangement to enable him to procure a divorce from the plaintiff.
It is immaterial whether there was collusion in the divorce suit, and whether the agreement of September, 1889, was invalid by reason of such collusion or for want of consideration. That agreement was made and performed by the defendant for several years. When he broke it the plaintiff asserted that it was valid and binding, and the agreement of 1896, now sued on, was made in settlement of the controversy so arising. The compromise of this controversy was a sufficient consideration for the
As there was an actual consideration for the agreement of 1896, it is immaterial whether it was to be construed as entered into in Ohio or in Massachusetts.
Whether the bankruptcy act of 1898 allows the proof of contingent claims must depend finally upon the construction of the statute by the federal courts. This court in Morgan v. Wordell, 178 Mass. 350, expressed the opinion that one class of contingent claims was not so provable, and in Goding v. Roscenthal, ante, 43, followed that expression of opinion by a decision to the same effect. If claims of the nature then held to be not provable are not provable, we see no ground for holding either class of obligations imposed upon the defendant by his contract of 1896 to be provable.
The result is that the defendant’s discharge in bankruptcy was not a bar to either branch of the plaintiff’s claim now in suit; and that the plaintiff should have judgment for all of the unpaid instalments declared for, with interest and costs.
So ordered.
