97 Pa. Super. 429 | Pa. Super. Ct. | 1929
Argued October 22, 1929. In two suits, one against her former husband and one against his father, plaintiff has judgment for want of sufficient affidavits of defense; both defendants have appealed; as their appeals were heard in one argument, they will be disposed of together.
On February 26, 1927, husband and wife (parties in No. 240, October Term, 1929), executed an agreement of separation; (a copy will be found in the reporter's statement). Paragraph 8 provides: "The husband covenants and agrees that he will, during his lifetime, during such time as they live separate and apart, the wife remaining unmarried, pay to the wife for her separate maintenance and support and for her separate use and benefit, the sum of $100 per month, beginning the fifth day of March, 1927, and monthly thereafter, which payments shall terminate on the death of the husband, the living together of the parties or the remarriage of the wife during the lifetime of the husband." Paragraph 12 states: "It is further agreed by the parties hereto that this agreement shall end, cease and terminate upon the death of the husband, the resumption of marital relations of the parties hereto, or the remarriage of the wife during the lifetime of the husband."
In the statement of claim in No. 240 plaintiff avers performance by both parties until November 5, 1928, when, she alleges, defendant defaulted. She brought suit March 7, 1929, and declared for the sums due up *436 to and including that payable March 5, 1929, a total of $450. She avers that she and her husband had not resumed marital relations, that she had not remarried and that he was still living.
In her suit against her father-in-law (appellant in 241, October Term, 1929), she makes substantially the same allegations and sues for breach of the contract of suretyship (see Act of July 24, 1913, P.L. 971).
In the affidavit of defense (appeal No. 240), defendant denies that he agreed to support his wife "for an indefinite length of time, and it is averred that both parties contemplated bringing divorce proceedings forthwith. It is further averred that the agreement was entered into in substitution for alimony pendente lite during the pendency of the divorce proceedings." He then avers that pursuant to proceedings instituted by him, he was divorced "in the latter part of the year, 1927;" and "at the time of the making of the agreement both the party plaintiff and the defendant, Lincoln W. Hall, contemplated the institution of divorce proceedings and each contemplated remarriage after the granting of a final decree." We note from the pleadings that, though divorced in 1927 he continued making payments under his agreement until November, 1928.
Defendant in appeal No. 241 avers that plaintiff represented to him "that she intended to remarry immediately after the divorce decree was obtained, and on the faith of his representation, the defendant, J. Lincoln Hall, undertook to be surety for the payments during the pendency of the divorce proceedings; that in the latter part of the year of 1927, the plaintiff and Lincoln W. Hall, her husband, were divorced, at which time it became the duty of the plaintiff to remarry or otherwise relieve the defendant, J. Lincoln Hall of any responsibility for the payments under the agreement of February 26, 1927." He also avers "that *437 it was represented to him that the agreement was in substitution for alimony pendente lite during the prosecution of the divorce proceeding which the parties had in contemplation when the agreement was executed and it was represented to him by the plaintiff that she intended to remarry after the entry of a final decree in divorce almost immediately, at which time the payments under the agreement would cease to be payable. That the said representations were fraudulent and known to be fraudulent to the plaintiff and she had since the entry of the final decree in divorce neglected to remarry or in any other way releasing the defendant's principal from payments under the agreement."
The contract on its face is lawful. It has been performed by plaintiff, — a fact that we must accept for present purposes: Miller v. Miller,
The suggestion in appellants' briefs that the consideration for the contract is against public policy and therefore unlawful does not merit discussion because there is no averment in the affidavits of defense to support it. In Miller v. Miller,
No. 240, judgment affirmed.
No. 241, judgment affirmed.