Wright v. Wright

Oct 19, 1901
Reporters:
,
Before:
Given
Given, C. J.

2 *7523 *750I. Appellant’s first contention is that the contract sued upon is “void for want of consideration, and as being contrary to public policy.” It is said that the defendant derives no benefit, and that there was no consideration moving from the plaintiff to him. Plaintiff’s promise was to marry, and to perform the duties of a wife to, the defendant’s son. In 14 Am. & Eng. *751Enc. Law (1st Ed.) 544, under title “Marriage Settlement,” it is said: “The consideration of such a contract may be any valuable consideration, reciprocal stipulations, or the marriage itself. ‍​​​​‌‌‌​​​‌‌​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌​‌​​​​​​​‌​​​​‍Marriage is a consideration of the highest value, and any contract or promise which brings about or helps to bring about a marriage is binding whеn the marriage has taken place,” etc. In Michael v. Morey, 26 Md. 239 (90 Am. Dec. 106), it was held that “the consideration of marriage is a valuable consideration, and not only sustains covenants in fаvor of the wife and the issue of the marriage, but also covenants for settlements in favor of children of a former marriage as a moral consideration.” In 6 Am. & Eng. Enс. Law (2d Ed) 726, it is said: “If a person be induced to marry by the promise or covenants of a third party, the marriage constitutes a valuable consideration for it; and this whether the promise or covenants be made upon condition that the promisee or grantee shall marry any particular woman, or merely that he shall marry, without restriction upon his choice.” ‍​​​​‌‌‌​​​‌‌​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌​‌​​​​​​​‌​​​​‍There was ample consideration for the promise of the defendant. This contract was not in restraint, but in encouragement, of marriage. In Greenhood, Public Policy, 482, it is stated as the rule: “A contract to pay money upon, but not in consideration of, tho marital infidelity of the promisor, is nоt invalid, when its object is to benefit the injured spouse.” In Wyant v. Lesher, 23 Pa. St. 338, A gave a bond to his expectant wife’s father, conditioned that he should “treat her as a loving and affeсtionate husband ought, and not desert her,” and if he should “maltreat, abuse, or desert her,” he and his surety would pay to her father the sum of $500 for the use of the wife and her heirs. The court said: “I see no more tendency in such a contract to disturb the harmony of conjugal life than in a marriage settlement, or in articles entered into after marriage, looking to a future separation. This husband stipulated simply for the performance of his duty, and a faithful discharge of that wa? the surest way to preservе *752peace in tbe family. Among tbe most imperative of the duties assumed in the marriage contract were the support and maintenance of his wife and child, and for these it was prudent in her father to extract from him a security additional to ‍​​​​‌‌‌​​​‌‌​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌​‌​​​​​​​‌​​​​‍his marriage vow.” As we have said, it was wise and timely, under the circumstances, that the plaintiff should exact this guaranty of a support in case of desertion and neglect by her husband. The contract is not against public policy.

‘4 II. Several witnesses were permitted to answer the following question over defendant’s objections: “What would be the reasonable expense for furnishing plaintiff a home in which to live, and provisions for herself and her child and clothing, taking into consideration the fact that she would be able to cook the food that they might need, and do such sewing as would be necessary and essential in making garments for their use ?” Appellant insists that it was only such a home and support as plaintiff’s husband in his circumstances and condition of life would be expected to furnish her. The question does not imply any belter home or support than was the duty of the husband to provide. Defendant’s agreement is thаt, in the event that the husband refuses or wilfully neglects to properly provide for his wife and child, “then I will furnish a home for her and said child, and properly provide for her аnd said child, until five years from this date.” The question contemplates no more than the plaintiff is entitled to under this agreement in case of abandonme3it and neglect by her husband. There was no error in the ruling.

III. At the close of the testimony the defendant moved for a verdict on the ground that there was no evidence that plaintiff’s husband hаd forsaken her and her child, or refused or wilfully neglected ‍​​​​‌‌‌​​​‌‌​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌​‌​​​​​​​‌​​​​‍to provide for them, and complains that his motion on this ground was overruled. This issue was properly submitted to the jury under the evidence, and we think the jury was warranted in finding there*753on as it did. The court instructed that plaintiff must show that she demanded of the defendant that he furnish a home for her and her child, and properly provide for them, and that he refused to do so. Appellant insists that the evidence does not show a refusal. This issue also was properly submitted to the jury, and their finding has such support that we should not disturb the verdict on this ground.

5 IV. When the jury retired to consider the verdict, it was agreed between the parties that, if the jury did not find a verdict before 9 o’clock p. m. of that day, they might seal their verdict and separate, and report it the following morning. The jury agreed about 10 p. m., seаled their verdict, separated, and reported in court at 9 o’clock the following morning, and when the verdict was opened it was in form as follows:’ “We, the jury, find for the plaintiff, and assess the damages at five dollars per week.” The court, over the objection of the defendant, instructed the jury, in writing, “to retire and determine the numbеr of weeks that the plaintiff is entitled to recover for in this case.” ‍​​​​‌‌‌​​​‌‌​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌​‌​​​​​​​‌​​​​‍The jury retired, and afterwards returned with the former verdict, with the words “for eighty-seven weeks, $435.00,” added therеto. Appellant concedes that this court has held that a jury, after returning a sealed verdict, maybe permitted to correct some formal error, but cоntends that nothing more than this can be done, and that in this case the jury did more, in that it determined the number of weeks’ that the plaintiff should recover for. The plaintiff’s claim’ was substantially for 87 • weeks, and there was no controversy but that, if entitled to recover at all, she was entitled for that length of time; hence the addition made to the vеrdict was the correction of a formal error. See Roberts v. Roberts, 91 Iowa, 228. There was no error in this action of the court.

*7546 7 *753V. The remaining contentions to be considered are these: The plaintiff was permitted to testify, over defend-” *754ant’s objection, as to the manner in which her husband treated her from the time of their marriage’ to the time of the alleged abandonment. It is contended that this evidence is immaterial; but not so. It is material, as tending to show the alleged desertion by the husband, and his failure to furnish support. In testifying to these transactions between her and her husband, the plaintiff related certain declarations and conversations between them, which were.objected to as incompetent under section 4607 of the Code, which is as follows: “Neither husband nor wife can be examined in any case as to any communications made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal in testimony any such communications made while the marriage relation subsisted.” The court, in ruling on the objections, said: “The court holds that the remarks or statements as between the parties, husband and wife, which they had, in connection with the conduct of the party and as explanatory of it simply, are not such communications as are excluded under section 4607 of the statutes, and holds them strictly to thosе that are simply explanatory of facts and transactions that bear upon the treatment of the husband to tire wife.” We agree that this is a correct statement of the law, and that much of the testimony objected to was competent under this rule, but we are equally divided in opinion as to whether other of the testimony admitted came within the rule. In other words, we do not agree as to whether all the conversations testified to were so far explanatory of transactions between the husband and wife as to become a part of the transaction, or to be communications, within the meaning of said section 4607. As upon the other contentions of appellant we fail to find that there was error, and being equally divided upon this proposition, it follows that under the law the judgment of the district court stands. — Arrirmed.