7 S.E.2d 604 | Ga. Ct. App. | 1940
An agreement by a husband to pay his wife a specified sum bimonthly for her support and maintenance while she is living apart from him and during the pendency of a suit for divorce is valid. Where the husband, without cause, breaches such agreement, a recovery by the wife against the husband for the aggregate of the arrearage in the payments is authorized.
The defendant demurred to the petition generally and specially. The special demurrer was on the grounds that the alleged agreement sued on does not constitute a valid contract, that the agreement shows on its face that it is an unilateral contract and was never accepted by the plaintiff, and also that the alleged agreement was not made by the defendant, or by any one authorized by him to make such an agreement. The court overruled the demurrer on each and every ground thereof. To this ruling the defendant filed exceptions pendente lite. The defendant answered, denying the allegations as to the agreement for temporary support of the plaintiff. Further answering the defendant alleged practically the same agreement as to temporary support for the plaintiff with the exception that he denied liability for alimony but on advice of counsel entered into the agreement sued on; that this agreement was only gratuitous on his part, the consideration for it being that his wife agreed to the prompt hearing of his divorce action; that the plaintiff failed in her part of the agreement by delaying the hearing of the divorce petition, and that for this reason the defendant ceased to furnish temporary support to the plaintiff; that the agreement was so breached by the plaintiff, and in fact was never accepted by her or by her attorneys. The case proceeded to trial before three judges acting as judge and jury, and a judgment was rendered in favor of the plaintiff for $112, the full amount sued for. The defendant made a motion for new trial on the general grounds only, which motion, after a hearing before the full bench, was overruled. To the judgments overruling the defendant's demurrers to the petition, and overruling the defendant's motion for new trial, the defendant excepted.
The defendant in his testimony admitted the execution of the contract alleged, but stated that it was a part of the contract that the plaintiff was to give him "an early hearing in the courts." He testified that since she failed to do this he failed to pay her any more alimony. The evidence authorized a finding that the defendant agreed to pay the plaintiff for support as alleged during the pendency of the suit, and that there was no provision in the contract that the plaintiff would facilitate a trial of the divorce suit or would not delay a trial.
It is the duty of a husband to support and maintain his wife.Bell v. Rossignol,
The evidence was sufficient to support the existence of the contract as alleged by the plaintiff, in which there was no obligation or undertaking on the part of the plaintiff to facilitate or not delay the hearing of the divorce suit. The evidence supported the verdict for the plaintiff. The court did not err in overruling the defendant's motion for new trial.
Judgment affirmed. Sutton and Felton, JJ., concur. *792