76 Mo. 624 | Mo. | 1882
Action before a justice of the peace, based on the following statement:
“ Plaintiff states that he is an attorney at law, duly licensed according to law ; that heretofore, to-wit: on the — day of-, 1877, one Louisa Allen employed plaintiff to bring and prosecute an action for divorce from her then husband, James Allen; that the cause of said divorce was that she had been deserted by her husband for more than three years before the bringing the suit for divorce or contracting with plaintiff to bring said suit for divorce, and that plaintiff' did bring said suit, and did successfully prosecute the same, and she was divorced from her said husband; that plaintiff's services therein were reasonably worth $20, which amount she agreed to pay plaintiff, before and after the divorce was granted, but which is due and unpaid;*625 that, afterwards, on the — day of-, 1878, defendant Thomas Dodson, was duly and legally married to Louisa Allen, and is now her husband. Wherefore plaintiff' prays judgment against said Thomas Dodson for said sum of $20 and costs.”
The doctrine of the case of Wilson v. Burr, supra, was departed from in the subsequent cases of Watkins v. Halstead, 2 Sandf. 511; Smith v. Allen, 1 Lansing 101, and Geer v. Archer, 2 Barb. 424, where that doctrine is repudiated. And before that case was adjudicated a different view of the law had been taken in Ehle v. Judson, 24 Wend. 97, and Smith v. Ware, 13 Johns. 257, which cases were not noticed in that on which plaintiff relies. The views we have expressed touching the point in hand are also supported by Mills v. Wyman, 3 Pick. 207, where the subject of the insufficiency of a mere moral obligation as the
In Greenabaum v. Elliott, 60 Mo. 25, Wagner, J.,-delivering the opinion of the court said: “A moral obligation by itself is not a good consideration for a promise. To impart to it any binding character, there must be some antecedent legal liability to which it can attach. Parsons says the rule may now be settled as follows : ‘A moral obligation to pay money or to perform a duty, is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was enforceable at law before the interference of some rule of law. Thus, a promise to pay a debt contracted during infancy, or barred by the statute of limitations or bankruptcy, is good, without other consideration than the previous legal obligation. But the morality of the promise, however certain or however urgent the duty, does not of itself suffice for a consideration. In fact, the rule amounts at present to little more than a permission to a party to waive certain positive rules of law which would protect him from a plaintiff claiming a just and legal debt.’ 1 Parsons Cont., 434. And the same learned author also remarks : “ Perhaps an illustration of the rule, that a moral obligation does not form a valid consideration for a promise, unless the moral duty was once a legal one, may be found in the case of a widow, who promises to pay for money expended at her request or lent to her during her marriage. It has been held in England in a case examined in a former. note, that this promise was binding and there are many dicta to that effect in this country ; but the current of recent decisions in England is in favor of the view that the promise of a married woman has not, when given, any legal force, and, therefore, is not voidable, but void, and cannot be ratified by a subsequent promise after the coverture has ceased, nor be regarded as a sufficient consideration for a new promise.” Ib., 485. And this court has
The case at bar is not distinguishable in principle from the last case or others cited in support of our views. The case of Gwinn v. Simes, 61 Mo. 335, in its result, is in accord with this 'one; for there the reception of the money on Sunday, constituted a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law, and, therefore, the express promise, o-wit: the mortgage, revived the precedent good consideration. 3 Bos. & Pul. 249; Geer v. Archer, supra. It has been ruled that a wife could, by such an agreement as that on which plaintiff has declared, bind her then husband, for an attorney’s fee for services rendered her in a proceeding for a divorce, instituted by her husband against her. Porter v. Briggs, 38 Iowa 166, and cases cited; s. c., 2 Cent. L. Jour. 681. But no case has gone to the extent of holding that any subsequent husband would be bound in consequence of such an agreement, made by one who at the time of making it was the wife of another.
No such case is presented by this record. Nor does the ease of Gallagher v. Delargy, supra, cited for plaintiff', resemble the one before us; for there the husband had never resided in this State, where the wife had resided for many years, transacting business as a femme sole. True, it is alleged that Allen deserted his wife, but this he might have done and still have resided in this State. The disposition