Smith v. Smith

34 Wis. 320 | Wis. | 1874

Lyon, J.

I. The delinquent tax or assessment was trifling in amount, and the plaintiff did not pay it or request the defendants to pay it, and was not injured by the failure of the defendants to pay it in due time. Such failure was entirely accidental, and the tax was paid before the issue was made up in the action. Under these circumstances it would be grossly unjust to hold that the nonpayment of the tax before the action was instituted was such a breach of the covenant of the mortgage as will entitle the plaintiff to the relief she demands. We are not aware of the existence of any principle, recognized by courts of equity, which will justify so severe a remedy in such a case. Such nonpayment is, however, a proper subject to be considered in determining tbe question of costs, wbicb, in a case like the present, is in the discretion of tbe court.

II. The testimony shows that the defendants desired, perhaps insisted, that the plaintiff should perform some labor about the house, and that during a portion of the time she lived in their family she did work for them to some extent. It also shows that because of her refusal to do so at a certain time, the defendant Mrs. Smith refused to serve her at the table. The plaintiff testifies that such refusal was continued for several days.

The plaintiff was under no legal obligation to labor for the defendants, and if they made her situation as a member of their family uncomfortable, by importuning her to labor, and persisted therein after her refusal to do so, she would doubtless have been justified in leaving their house for that reason, and could then have successfully claimed that the condition of the bond had been broken.

Again, if the defendants withheld from the plaintiff those usual and customary domestic courtesies which they extended to other members of their family, and which were essential to her comfort, and • persisted therein against the protest of the plaintiff, she would have been justified in leaving their house for such cause, and the condition of the bond would in like manner have been broken.

But in either case it was necessary, before the defendants can be held to have broken such condition, that the plaintiff should have claimed in some manner that they were doing so, to the end that they might, were the claim well-founded, cease the objectionable acts.

Contracts like that under consideration are quite common (in my opinion quite too common); and probably there never was a case in which some breach of the contract, more or less important, might not be proved. But these are usually overlooked or excused. It would be a violation of correct princi • pies to hold in those cases, that a breach of which no serious notice was taken at the time it was committed, is sufficient to enable one party to the contract to go into court at any time afterwards and enforce against the other the severest consequences of a violation of his contract.

The testimony in this case shows quite satisfactorily that the plaintiff labored only when she chose to do so, notwithstanding the alleged request of Hiram and the importunities of his wife. In that matter, the plaintiff was clearly the victor; for, if we read the testimony correctly, the plaintiff ceased to work for them, and the defendants ceased their efforts in that behalf, a considerable time before she ceased to be a member of their family.

The refusal of Mrs. Smith to serve the plaintiff at the table was continued but a short time, after which we hear of no repetition thereof, and no complaint from the plaintiff concerning such refusal, although she remained a member of defendants’ family some time longer.

The plaintiff does not aver that she left the house of defendants on account of any bad’ treatment which she received while a member of their family. This fact, and the facts before mentioned, that the objectionable treatment had ceased, and that it was not claimed or insisted upon as a breach of the contract of maintenance, render it now too late for the plaintiff successfully to claim relief by reason of such treatment.

III. The remaining question is, whether the defendant Hiram has refused to support the plaintiff in his family according to the terms of his covenant or agreement.

It appears that she resided in his family on the mortgaged premises, from the time the bond and mortgage were executed, for about two years, when the defendant removed with his family to a neighboring county, leaving the plaintiff in the house on such premises, and leaving with her some articles of furniture. Since that time she has not resided in the family of the defendants. Hiram gave her $25 when he left, and there was an agreement between them that sbe should, have the rent of the house. She afterwards rented it at $150 a year, and admits the receipt of rent to the amount of $200.

The plaintiff testifies that when the family removed from Oshkosh, Hiram made no provision for her to go with them, and that neither he nor any member of his family asked her to accompany them. She does not say tha<t he refused to' take her, or deny that she refused to go with them. Hiram testifies that when they moved he asked plaintiff to go with them, and-that she refused. Mrs. Smith also testifies that she refused to leave Oshkosh with them. These are the only witnesses who testify on the subject. Hence, while there is a conflict of testimony as to whether the plaintiff was asked to go, there is none whatever as to the fact that she refused to remove from Oshkosh with the family of the defendant. After such refusal the defendants were not required to invite her to go with them.

The whole testimony satisfactorily proves that she remained in Oshkosh voluntarily, under an arrangement with Hiram to do so, and to receive the rental of the mortgaged premises as at least.a part of her support, and this without any reference to any previous failure of Hiram to fulfill all of the terms of his agreement with her. There is no testimony tending to show that she has ever sought to return to the defendants’ house and to reside in his family. It seems very clear that, until she does so, there is no breach of the condition of the bond in that behalf.

IY. Although we fail to find any breach of the condition of the bond which entitles the plaintiff to a judgment of foreclosure, yet we trust sufficient has been said to indicate to the defendants their legal duty in case the plaintiff elects to reside with them in the future. This controversy should be speedily and amicably arranged, either by a return of the plaintiff to the family of the defendants, or by adequate provision for her support elsewhere. If the first course be taken, the defendants must accord to her the treatment which the bond demands at their hands, and a court of equity will not be slow to administer the appropriate remedy for any material and uncondo'ned failure in this respect.

It is not thought advisable to determine here the extent of the relief to which the plaintiff would be entitled were she to recover in the action.

It follows that the judgment of the county court must be reversed, and the cause remanded with directions to dismiss the complaint, but without costs in that court to either party.

By the Court. — So ordered.