78 Iowa 177 | Iowa | 1887
Lead Opinion
The contract sued upon is in these words: “This agreement, made this fifth day of August, 1885, between the undersigned, husband and wife, in the interests of peace and for the best interests of each other and of their family, is signed in good faith by each party, with the promise, each to the other, and to their children, that they will each honestly promise to help each other to observe and keep the same, which is as follows, to-wit: All past causes and subjects of dispute, disagreement and complaint of whatever character or kind shall be absolutely ignored and buried, and no allusion thereto by word or talk to each other or any one else shall ever be made. Each party agrees to refrain from scolding, fault-finding and anger in so far as relates to the future, and to use every means within their power to promote peace and harmony, and that each shall behave respectfully, and fairly treat each, other; that Mrs. Miller shall keep her home and family
The petition demurred to is quite long. We cannot set it out. The defendant demurred upon the ground that it showed the contract to be without consideration and against public policy. His position is that the plaintiff merely agreed to do what by law she was bound to do. The majority think that the defendant’s position must be sustained. The writer of this opinion is not able to concur in that view. The petition sets out several reasons and inducements for making the contract. Among other things, it avers, in substance, .that the defendant, while improperly spending money upon other women, refused to furnish the plaintiff with necessary clothing, and she had been compelled to furnish.it herself by her personal earnings. This the demurrer admits. It appears to the writer, then, that the plaintiff had the right to separate from the defendant, and go where she could best provide for her wants. This right she waived in consideration of the defendant’s contract sued upon. The waiver of the right, it seems to the writer, constituted a consideration for the contract; but, as the majority think otherwise, the judgment must be
Affirmed.
Seevers, J., dissents from the majority, and concurs with the writer of the opinion.
Dissenting Opinion
Opinion on Rehearing.
Since the former hearing of this case a majority of the members of this court have retired, and others are substituted, and Of those retired are Adams
The action is by a wife against her husband, to recover on a contract, which is in the following words : “This agreement, made this fifth day of August, 1885, between the undersigned, husband and wife, in the interest, of peace, and for the best interests of each other and of their family, is signed in good faith by each party, with the promise, each to the other, and to their children, that they will each honestly promise to help each other to observe and keep the same, which is as follows, to-wit: All past subjects and causes of dispute, disagreement' and complaint, of whatever character or kind, shall be absolutely ignored and buried, and no allusion thereto, by word or talk, to each other, or any one else, shall ever be made. Each party agrees to refrain from scolding, fault-finding and •anger, in so far as relates to the future, and to use every means within their power to promote peace and harmony. That each shall behave respectfully, and fairly treat the other. That Mrs. Miller shall keep her home and family in a comfortable and reasonably good condition, and Mr. Miller shall provide for the necessary expenses of the family, and shall, in addition thereto, pay Mrs. Miller, for her individual use, two hundred dollars per year, payable, sixteen and two-thirds dollars per month, in advance, so long as Mrs. Miller shall faithfully observe the terms and conditions of this agreement. They agree to live together as husband and wife, and observe faithfully the marriage relations, and each to live virtuously with the other.” The petition recites the contract, avers a breach of its conditions for payment of the monthly installments, and asks for judgment.
The petition is assailed by demurrer on two grounds: (1) That the contract for the payment of the money is
I. The theory npon which appellant seeks to escape the- force of the claim that this contract is against public policy is that the agreement to pay the yearly or monthly, amounts is but a post-nuptial settlement of such amount in favor of the wife, and therefore sanctioned by law. We must consider the averments of the petition in the light of the contract which is the basis of recovery, and statements of the petition not in harmony with a right of recovery oh the contract are not well pleaded, and are not admitted by the demurrer.
We think it important to first settle the question, for what is the plaintiff entitled to recover, if at all ? The contract is decisive of tfiis question, and, for the purposes of the demurrer, will override any opposing statements of the petition. The contract recites that ‘ ‘ Mr. Miller shall provide for the necessary expenses of the family, and shall,- in addition thereto, pay Mrs. Miller, for her individual use, two hundred dollars per year, payable, sixteen and two-thirds dollars per month, in advance, so long as Mrs. Miller shall faithfully observe the terms and conditions of their contract.” Whatever may have induced the making of the contract, one thing is certain,- — the ground of recovery from time to time is a faithful observance of the contract. If payment of the amounts is enforced, this observance must be pleaded, and, if denied, it must become a matter of judicial inquiry. Now, looking to the contract, we find that the plaintiff has agreed to do just what is demanded by her marital relations and is essential to domestic felicity. If she does this, under the letter of her contract, she may recover; if she does not, she cannot recover. Conceding, for the purpose of this branch of the case, that the contract is supported by a consideration independent of her promise, therein, and looking exclusively to the question, is its enforcement against public policy % we may properly ask, does it not contain
It is of the genius of our laws, as well as of our civilization, ' that matters pertaining so directly and exclusively to the home, and its value as such, and which are so generally susceptible" of regulation and control by those influences which surround it, are not to become matters of public concern or inquiry. This thought has vindication throughout our system of jurisprudence. The marital obligation of husband and wife in the interest of homes, both happy and useful, have a higher and stronger inducement than mere money consideration, and they are generally of a character that the judgments or processes of the courts cannot materially aid, and are clearly so in the case we have supposed. We are not referred to, nor do we find, a case wherein a recovery has been justified on a contract of this character. It is to be kept in mind that public policy is not against the payment of'money, if it is done voluntarily; but the evil which the law. anticipates arises from the enforcement of such a contract, which, if’ legal, should of course be enforceable. Now the inquiry is, keeping in view the question of public policy, how does the case at bar .differ from the supposed
Mr. Bishop, in his work on contracts, speaking of the enforcement of contracts for services by the wife to the husband,, treats, in part only, of what might be expected on the trial of issues of fact in the case at bar, when, he say: “If the wife spends an afternoon in visiting her mother, instead of making jellies, shall the husband bring her into court, to determine the abatement to be made from the sum he had promised her for work in keeping his boarding-house?, Shall there be'a lawsuit to settle the allowance for tending the baby, which is partly his and partly hers ? If her washing is sent to a laundress, and her clothes had been soiled in part in doing his work, and in part in doing her own, and in part in tending the baby of both, shall the judge of a court be employed in instructing the jury how to adjust the account between them?” Section 948. When we think of the thousand occurrences of life to provoke an unpleasant word, to stimulate anger, or a word of fault-finding, and think of the circumstances in domestic life from which they may arise, we can best understand the character of the inquiries likely to arise in the enforcement of the contract in the case at bar. That which should be a sealed book of family history must be opened for public inspection and inquiry. The law, except in cases of necessity, will not justify it.
The cases to which we are referred by appellant are unlike this as to their facts. The case of Adams v. Adams, 91 N. Y. 381, is where a suit for divorce was pending, and the suit was settled and dismissed by the plaintiff ; she condoning his offense of adultery, and returning to live with him, he giving his note in settlement. The note was held valid. We have not held in this case that, if the plaintiff was seeking to recover on an absolute promise to pay because of any consideration, the contract would not be good, nor do we hold that it would. We only say now that, with the conditions of this contract as to payments, its enforcement is against public policy.
