66 Colo. 500 | Colo. | 1919
delivered the opinion of the court:
The first question for consideration is the validity of this contract of separation. There is nothing in it which, under the laws of Colorado, is against public policy.
Attorneys for plaintiff in error urge that inasmuch as this contract fails to set forth a good cause for the separation, the contract is invalid. They admit that if a separation is “inevitable,” whether a property settlement is made or not, then a separation agreement settling the property rights of the parties may be made without violating public policy; but they further contend that such separation must, in the first instance, be by agreement of the parties. In this we think they are in error. If it appears, as here, that such separation- had first been definitely determined upon by one of the par-ties, that it had in fact thereafter taken place, and that no prospect of a reconciliation appeared, then such separation would be just as “inevitable” and furnish as good a basis for a separation agreement as if it had originally taken place by mutual consent. Mrs. Hughes could not compel her husband to live with her or remain in his home. If she were not at fault, she could compel him to support her in such circumstances as his means justified. If she were without personal knowledge of such means, our statutes afforded her an ample remedy to compel her husband to disclose them. Under these conditions, the cause of the separation and the reasons for the execution of the contract were exclusively for the determination of the parties. By their contract they found them sufficient, and if the wife were not coerced into its execution, if no unfair advantage were taken of her by her husband, that contract is her own determination of the fact that a separation was “inevitable,” and is a complete bar to her action. We think every question necessary to this conclusion has been settled,
If the plaintiff were coerced into making this contract, or if any unfair advantage was taken of her by her husband, those allegations must depend for their proof upon the testimony hereinbefore set out. If the ruling of the trial court excluding the testimony of the plaintiff was erroneous (a question which it is unnecessary to determine herein), was the plaintiff prejudiced thereby?
It is not presumed that counsel for plaintiff, in his offer of proof, set forth in detail what her testimony would be, but it is presumed that, having made the offer, he set it forth in substance; that, if her testimony would be material to any issue in the case, his offer would disclose that materiality. On the contrary, the offer convinces us of the immateriality of the excluded testimony. Plaintiff contends that she was coerced into the making of this contract, first by her husband’s threats to alienate his property in case of her refusal; second, that she was misled by his statement that he was a poor man, and that there was a judgment against him of $12,000, which was a lien against his property. Under our law, the husband had a perfect right to alienate this property during his lifetime, subject to the prohibition of the rule laid down in Smith v. Smith, 22 Colo. 480, 46 Pac. 128, 34 L. R. A. 49, 55 Am. St. 142, and his threat to do what it was his lawful right to do can not be held to be coercion. That plaintiff was not misled by her husband’s allegations of poverty is clearly shown by her counsel’s offer of her testimony, “that she had no,accurate knowledge of her husband’s means, but understood that he teas very well off.” She further contends that at the time of the making of this contract she was ill and incompetent, physically and mentally, to execute such an agreement. The evidence of such incompetence is of itself very unsatisfactory, and is more than overcome by the fact that she was at all stages of her negotiations represented by counsel. She further attempts to show that the same
So far as the testimony of witnesses Bottom and Huddart is concerned, it is to the same effect as the offered testimony of the plaintiff. For the same reason it is immaterial, and the ruling of the court excluding it could not have been prejudicial.
Furthermore, we think the conduct of the plaintiff, as here shown, is a ratification of her contract; and she is likewise prohibited by the proper application of the rule of laches from now impeaching it. No express ratification is necessary. Any act of recognition of the contract (retaining the fruits of it through many years) has the effect of an election to affirm. Acts of dominion exercised over the property received under the contract after knowledge of the ground of rescission amount to a ratification. Laches need not be specially pleaded, and, without such plea, it is entirely within the power of the court, either at the trial or upon review, to dismiss an action upon that ground. French
When a court sees neglect on one side and injury therefrom on the other, it is a ground for denial of relief. Bement v. LaDow, 66 Fed. 185 (C. C.).
One who, knowing his rights, takes no steps to enforce them until the condition of the other party has in good faith become so changed that he can not be restored to his former state if the rights be then enforced, is estopped by the doctrine of laches from assertion of the rights. Chase v. Chase, 20 R. I. 202, 37 Atl. 804.
Certainly Mrs. Hughes, long prior to the death of her husband, knew her rights. Certainly she took no steps to enforce them. Certainly, the condition of Hughes has become so changed that he can not be restored to his former state.
Plaintiff says she was coerced by her husband’s threat to do a lawful thing into entering into a solemn contract with him settling all their property rights. She took the property and money given her under that contract and pretended to be satisfied. She says she made that pretense to prevent her husband from dealing with his property as he had a right to do, and for the purpose of convincing him that all financial questions growing out of their marriage' relations were settled; that she bided her time in silence, with no intention of keeping her contract, until death had stopped her husband’s mouth, and she now claims the right to what must of necessity be an ex parte hearing on her principal allegations, and the right to reap the fruits of her watchful waiting. The husband had deserted her (she says without cause) and welcomed a suit for divorce or separate maintenance. According to her testimony, he seemed to have no fear as to what such an action would reveal as to his own conduct. It was this plaintiff who then saw fit to accept what she could get, rather than submit her claims and her conduct to the tribunal whose- aid she now
Again, plaintiff’s whole claim to a recovery is based upon an alleged fraud perpetrated on her by her husband. A well settled rule of law required her, in such case, to take proper steps to set aside her contract within a reasonable time after the fact of the fraud became known to her. The fraud, if any, consisted in her husband’s misrepresentations to her as to his financial standing. An essential element of recovery is that she believed such representations and was misled thereby to her detriment. She makes no such allegation in her pleadings, introduces no evidence thereof, and makes no offer of such proof. In fact, her pleadings and her offer of proof show the contrary. If she were so misled at the time of the execution of this contract, there must have been some time between that date and the date of the bringing of this action when the facts became known to her. We search this record in vain for any pleading, or for the offer of evidence, of any such discovery.
From the foregoing, it must be concluded that the evidence offered and rejected by the court was immaterial; that plaintiff was not injured- by that ruling; that she ratified the contract; that she is now prohibited by the doctrine of laches from impeaching its validity; that, granting the truth of all her testimony, rejected or received, there is no evidence of her having been misled by any material false representations made to her by her husband; and that she pleaded no facts upon which such evidence could be admitted.
The judgment of the trial court is accordingly affirmed.
