131 A. 236 | Pa. | 1925
Assumpsit for moneys alleged to be due on a written contract.*
The opinion of the Supreme Court states the facts.
Judgment for defendant on question of law raised by affidavit of defense. Plaintiff appealed.
Error assigned was judgment, quoting it.
To the amended statement of claim, an affidavit of defense was interposed, raising solely the question of law as to the right to recover upon the contract, averring that the illegality was apparent on its face. It was contended that the real consideration for the promise to pay was the obtaining of a divorce, and therefore the contract was unenforceable as repugnant to public policy. This legal position was sustained by the court below, and judgment entered for the defendant. We are now asked to review the conclusion reached, and do so, having in mind that all material facts averred in the statement shall, for present purposes, be taken as provable, and the benefit of reasonable inferences to be drawn therefrom must be given the plaintiff. It is also to be remembered that any doubt existing, as to the right to summary judgment, shall be resolved in her favor: Rhodes v. Terheyden,
The contract in dispute sets forth the purpose of the wife to immediately apply for an absolute divorce, and that the husband recognized his legal liability to her for support and maintenance. There follows the provision for the transfer of the stock, before mentioned, to one named, "to be by him held in trust for [the husband] until such time as [his] said wife procures an absolute divorce from [him], within the next eight months, succeeding the date hereof, when and at which time he shall transfer and assign the same to [his] wife absolutely." It is further stipulated that if no divorce is obtained, the securities shall be returned to the settlor, and the agreement also sets forth the understanding as to the amount to be paid if the stock be given to the wife and dividends thereon remain unpaid. Plaintiff avers in the statement filed that this arrangement was made solely to obtain reasonable maintenance, and fixed a sum less than could have been secured from a court of competent jurisdiction, either in a proceeding for nonsupport, or as alimony. It is further claimed, the stipulation referring to a divorce was merely incidental, and was in no way dishonestly entered into for the purpose of facilitating the granting of a decree, or to assure that an application to the court would remain unopposed. In the opinion filed below, it is said that the writing alone must control, and since there was no suggestion of fraud, accident, or mistake in its execution, parol evidence to explain the understanding of the parties was inadmissible. The plaintiff asserts there was no collusion to secure a divorce, and that the facts averred disclose the intention of the parties, negativing the existence of any such purpose, and therefore the contract cannot be properly construed to be one having for its end the performance of an act opposed to public policy, and, as a result, unenforceable.
Family settlements are always favored, and, when made to settle controversies between husband and wife, will be enforced if legally possible: Fishblate v. Fishblate, *418
It is conceded by both parties here that if the contract had for its sole purpose the securing of a divorce, the agreement would be held contrary to public policy, and therefore inoperative (Mathiot's Est.,
In the present case, the wife had been compelled to separate by reason of the wrongdoing of the husband, and accepted the provision for her support, as a result of the intervention of his father. Defendant bound himself to pay a less sum than could likely have been obtained in an action for nonsupport, or as alimony, in view of his wealth. The application for divorce was under advisement, prior to the date of the contract, and counsel had been consulted with the intention of instituting the necessary proceeding. If the facts averred in the statement are true, there was no collusion to secure the decree subsequently obtained on valid grounds. The defendant did not in any way bind himself not to present a defense, or agree to furnish evidence or aid the libellant, if she determined to make application for the permanent dissolution of the marriage tie.
The court below was of opinion that the writing itself showed it to be contrary to public policy, and that therefore a suit could not be maintained with it as a basis. It is true plaintiff's case cannot avail where dependent on evidence which discloses solely a written agreement repugnant to public policy and therefore not *420
sustainable: First Nat. Bank v. Baer,
Plaintiff is entitled to be heard, and given leave to produce the proposed proof, negativing the suggestion that the contract was entered into in consideration of an agreement to secure a divorce, or to facilitate the granting of one. If this can be satisfactorily done, a recovery may be had, otherwise the defendant must prevail in his contention.
The judgment of the court below is reversed and a procedendo awarded.