Valentine v. Bell

66 Vt. 280 | Vt. | 1894

ROWELL, J..

Plaintiff sues to recover for keeping defendant’s daughter from the time she was two months old till she was eighteen. During a part of the time in question defendant was covert of Minor, who procured a divorce from her in September, 1877. She remained sole until April 22, 1884, when she married Bell, of whom she is still covert. Minor ceased to cohabit with her more than a year before the divorce, leaving the child with her and subject to her full control, which she assumed and contracted with the plaintiff for its support.

It was error to rule that, in the circumstances, the defendant was bound by that contract. Having been made when she was covert, and she having no separate estate nor property of any kind, as the case shows, that contract is entirely void, though for necessaries for the child, and therefore unenforceable in this action. Hubbard v. Bugbee, 58 Vt. 172.

Defendant could, of course, bind herself by contract while sole; But on such .contract her present husband is liable with her, for he married her before January 1, 1885. Acts of 1884, No. 140, s. 3. Now while coverture of the defendant is but matter of abatement, and must be pleaded as such when it can be or is waived, here it could not have been pleaded in abatement, because the action is based, not only upon a contract made by the defendant when sole, but upon a contract made by her after the passage of said act, which enables her to make binding contracts, and subjects her to be sued alone upon them. She can, therefore, take advantage under the general issue of the non-joinder of her husband in respect of the contract made by her while sole.

But plaintiff claims that he can recover on defendant’s promise made since the passage of said act that she would pay for keeping the child while she was covert of Minor and while she was sole. But as the promise made while she was covert of Minor was void, both at law and, in equity, it constitutes no consideration for the subsequent promise to perform it. Hayward v. Barker, 52 Vt. 429. Nor does the indebtedness created while sole constitute a consideration for the subsequent promise to pay it. It amounts to no more than this, that being liable to pay she promised to pay. Such a promise, without more, is null, and affords no ground of action. It left the debt and the parties as they were-before. Thus, the promise of a husband to pay the ante-nuptial debt of his wife is of no avail if the only consideration for the promise is his pre-existing liability to pay it. Drue v. Thorne, Aleyn, 72; Mitchinson v. Hewson, 7 T. R. 348; Cole v. Shurtleff, 41 Vt. 311. See, also, Vanderbilt v. Schreyer, 91 N. Y. 392; Wimer v. Worth Township, 104 Pa. St. 317; Deacon v. Gridley, 15 C. B. 295.

Defendant’s motion for a verdict on the ground that Minor was legally bound to support his child and that therefore her promise was within the Statute of Frauds, was properly overruled. The court also properly refused to charge, as requested, that it being the duty of Minor to support his child, therefore any promise the defendant made to pay for its support was without consideration.

Judgment reversed and cause remanded.