Lead Opinion
The verdict is vigorously assailed by appellant because it finds that plaintiff entered into the marriage with Fox in good faith. The principal grounds for the argument are that the parties entered into a civil contract of marriage before a notary public and witnesses and were not married in the usual manner; that she had had exhibited to her the decree of divorce which Mr.. Fox had secured from his first wife, which decree was one from bed and board and not an absolute one, and that she had been told by the former wife and daughter that she was living in adultery with Mr. Fox.
Since the law recognized as valid a civil contract of marriage at the time this was entered into (Becker v. Becker, 153 Wis. 226, 140 N. W. 1082), it cannot be held error for the jury to find that there was nothing suspicious or wrong in entering into a lawful contract of marriage. The claim that since plaintiff saw the judgment for divorce from bed and board she must have known it was not an absolute divorce as Mr. Fox represented it to be is not
The claim that plaintiff was informed that she lived in adultery with Mr. Fox rests upon conflicting testimony, and we cannot disturb the jury’s conclusion as to where the truth lies.
The question presents itself whether or not the plaintiff under the verdict rendered is entitled to recover for services and rent of house.
Courts are practically unanimous in holding that when a woman voluntarily and knowingly lives in illicit relations with a man she cannot recover- on an implied contract for services rendered him during the period of such relationship. 29 L. R. A. n. s. 787. Some courts hold that she can recover on an express contract if it does not form a part of the agreement for illicit relations. Ibid. On the question here presented as to whether, a woman, who in good faith believes she is married to a man when she is not, owing to his fraud or to a mistake of fact, can recover for services rendered him during the supposed marriage, the
There can be no question but that an action based on the implied promise to pay for services and rent survives and that the statutes of limitation do not bar the claim for the last six years. That is all the court allowed.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). The lengthy claim filed by respondent in the county court and certified to the circuit court upon her demand for a jury clearly and emphatically stated a cause of action for a tort. It was in substance that during the two months prior to November 21, 1914, the plaintiff, a business woman then about
That on account of her belief in and reliance upon such false and fraudulent representations made prior to the contract she turned over her earnings to him, gave him a home, did Jiis laundry, nursed and cared for him, and furnished him board. That on account and as a result of such false and fraudulent representations, the resulting contract and subsequent cohabitation, she lived, from the date of such contract to his death, in a false and degraded position, has suffered mental and physical pain, has been deprived of the benefits springing from a legal marriage, defeated of her dower rights, and that decedent and his estate were wrongfully enriched at plaintiff’s expense and to her damage. Not only was a tort action so plainly stated but the special verdict submitted the appropriate questions for just such a tort action.
She necessarily and concededly rendered the services for which she recovers herein because, and only because, of the contract of November, 1914, otherwise the relationship would be such as to defeat any possible right to recover. She could not base any right to recover for services during the
Assuming the findings of’ the jury to be correct, a gross fraud was perpetrated upon her in 1914 from which the entire subsequent relationship of the parties must necessarily be .traced. To the cause of .action so founded the statute of limitations was properly pleaded, and under the undisputed facts the period under which she could obtain the remedy for such fraud in 1914 had expired prior to the death of the decedent. For -such a cause of action it is entirely immaterial that she may not have discovered it until after the statutes had run.
I think the situation comes squarely within repeated decisions of this court, particularly such as Stahl v. Broeckert, 170 Wis. 627, 176 N. W. 66, where the statute of limitations defeated the rights of an aged widow who was fraudulently induced to sign a certain note and mortgage; Darling v. Nelson, 171 Wis. 337, 176 N. W. 847, where sisters were alleged to have been fraudulently induced by their brothers to execute a conveyance of certain interest in real estate; Sander v. Newman, 174 Wis. 321, 181 N. W. 822, where the complaint was because of alleged
Cooper v. Cooper, 147 Mass, 370, 17 N. E. 892, is a case almost identical in facts with the one here, and relief was denied, as well as in Graham v. Stanton, 177 Mass. 321, 58 N. E. 1023, where services were rendered by a child to one falsely representing that he had legally adopted such child.
I am further convinced from the record in this, case that the plaintiff, having possession of a copy of the decree of divorce between decedent and his first wife with ample opportunity of ascertaining its nature, having been divorced herself, of business experience, of mature age, should be held bound by the notice of its nature appearing on its face or so easily ascertainable, and that the finding of the jury in that regard should have been set aside.
I am authorized to state that Mr, Justice Rosenberry concurs in the foregoing dissenting opinion.