Kramer v. Kramer

• Decision Date: 30 May 1905
• Citation: 181 N.Y. 477,74 N.E. 474
• Parties: KRAMER v. KRAMER.
• Court: New York Court of Appeals Court of Appeals

181 N.Y. 477

74 N.E. 474

KRAMER

v.KRAMER.

Court of Appeals of New York.

May 30, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Gertrude S. Kramer against Edwin G. Kramer. From an order of the Appellate Division (90 App. Div. 176,86 N. Y. Supp. 129), reversing a judgment for defendant, he appeals. Reversed.

See 80 N. Y. Supp. 184.

Gray, Bartlett, and Haight, JJ., dissenting.

Alton B. Parker, Daniel P. Hays, and Ralph Wolf, for appellant.

W. W. MacFarland, for respondent.

O'BRIEN, J.

This was an action on a promissory note of $12,000, dated at Boston on the 1st of April, 1901. It is signed by the defendant. The body of the instrument is not in the usual form, but the promise is expressed in these words: ‘After date I or my estate promise to pay to the order of Gertrude Short Kramer twelve thousand dollars at 6% interest from date at 474 Commonwealth Avenue, Boston, Mass. Value received. $12,000. No. 1 Due.’ The defense to this note was want of consideration. It seems to me that it may be safely said that no one contends that the note was given for any debt or other legal obligation as between the plaintiff and the defendant. The defendant owed the plaintiff nothing, and was under no legal obligation to give the note in question. The plaintiff is the wife of Alfred E. Kramer, a brother of the defendant, the maker of the note. The plaintiff and the defendant's brother became engaged May, 1898. They were married November 9, 1898, and at the time of the execution of the note in question they were living together as husband and wife; and it may be presumed that they are still living together, since nothing to the contrary appears in the record. The theory upon which a consideration for this note is made out is that before the marriage it was contemplated that some provision should be made by the prospective husband for the plaintiff, and that between the date of the engagement and the date of the marriage there were a great many family conversations upon this subject. The plaintiff claims that it was agreed that the prospective husband should settle upon her $10,000, that amount to be increased as he might be able; and it is said that the last conversation on this subject took place the day before the marriage. There was no payment of any money, nor any settlement of property in any form made upon the plaintiff. It is claimed that after the marriage the financial condition of the husband was disappointing to the wife, and that she insisted upon the performance of the promise made during the engagement. On the trial the deposition of the defendant was read, and it is claimed by the learned counsel for the plaintiff that his testimony pointed to a consideration for the note. He has quoted from the defendant's deposition read by the plaintiff some of the conversation that took place between the plaintiff's husband and the maker of the note at the time it was given. The husband said to him: ‘I want to have you give me a note for a certain amount. This was the latter part of March, 1901. He came to me at the hotel where I was lunching at noontime, and said to me: ‘I must have a note. I want to give a note to my family. They have been hounding me for nearly a year that I have not got anything.’ And I said to him: ‘Why, that is not my business. I am all through with you. I owe you no money, and why should I give you a note?’ He said to me, ‘Well, he did not know of any one else to call upon, and called upon me to give him this note,’ and I foolishly did so, and I think it was dated. Q. Did you deliver the note to him? A. No, sir. Q. What did you do with it? A. I mailed it to him.' It is very plain, I think, from this testimony, that the wife was disappointed in finding that her husband's means were not as she expected at the time of the marriage; that there was some trouble in the family, growing out of this circumstance; and that the husband procured his brother, this defendant, to execute the note for the purpose of promoting peace in the family. The defendant says, in effect, that he told the husband to show the note to the wife, and that he did not intend it should be delivered. However that may be, it must be regarded as a settled fact in the case that the husband delivered the note to his wife, the plaintiff, in an envelope upon which was indorsed, in substance, the words that the note was the property of the plaintiff, and I assume that there was no question about the delivery, since the plaintiff produced the note at the trial, and so the sole question is whether the note has any legal consideration to support it. It was not given in consideration of a promise on the part of the plaintiff to marry the defendant's brother, since it was given more than two years after the marriage was consummated. It was not given for any debt or obligation as between the plaintiff and the defendandt. It was not given for any debt or legal obligation as between the defendant and his brother, the plaintiff's husband.

As I understand the argument of the learned counsel for the plaintiff, he contends that the note is a written promise made by the defendant in consideration of marriage; that is to say, in consideration of the marriage between the brother of the maker and the plaintiff. On the first trial of the case judgment was directed in favor of the plaintiff but upon appeal the judgment was reversed, and a new trial granted. Kramer v. Kramer, 80 App. Div. 20,80 N. Y. Supp. 184. On the new trial the learned judge directed a verdict for the defendant, but that judgment has been reversed, and the defendant has appealed to this court. I am not able to perceive much, if any, difference in the facts as they appear now and appeared at the first trial. On both appeals below the question of consideration was involved, and it is difficult to see how the plaintiff's case is any stronger now than it was at the first trial. If the plaintiff's promise to marry was conditioned upon the payment of money or the settlement of property upon her by her intended husband, she was not bound to carry out the promise until the conditions were performed. All verbal promises made by either party during the engagement must be deemed to be merged in the marriage. A marriage already consummated could not very well constitute a valid consideration for the note. The maker of the note was, in law, a stranger to the marriage and to the whole transaction, and, so far as the record discloses, appears to have made the promise in order that it might be shown to the plaintiff for the promotion of peace between herself and her husband. I do not think that it has ever been held, not do I think that it can be held, that such a promise, made under such circumstances, is supported by a valid consideration. The learned judge who directed the verdict for the defendant in this case at the trial has stated the question so clearly, and so much better than I can state it, that his language may be quoted: ‘The defendant has received no consideration for the note either from the plaintiff or from his brother. He has given that note to his brother for a specific purpose, namely, to show it to the latter's family, and secure peace thereby. The brother takes the note and puts it in an envelope, actually delivers it to the plaintiff, and says that it is her property. There was no consideration moving to the defendant, and the plaintiff had the note, not for money paid by her to her husband, nor yet in payment of a pre-existing debt; nor, in fact, in satisfaction of any legal obligation on the husband's part. It follows, in my judgment, there being no consideration for the note in any aspect of the case, that the verdict should be directed for the defendant.’

I do not think that the possession of the note by the plaintiff, or the use of the words ‘value received,’ creates any question of fact for the jury. The case of Strickland v. Henry, 175 N. Y. 372, 67 N. E. 611, is not an authority for any such proposition. That was doubtless a close case, but it was decided in this court upon no such state of facts as we have now before us in this case. There was but one witness sworn at the trial who gave any evidence concerning the consideration of the note, and that was the defendant himself. His deposition was taken...