Barrett v. Carden

• Decision Date: 06 April 1893
• Citation: 26 A. 530,65 Vt. 431
• Parties: SIDNEY H. BARRETT v. HENRY C. CARDEN
• Court: Vermont Supreme Court

26 A. 530

65 Vt. 431

SIDNEY H. BARRETT v. HENRY C. CARDEN

Supreme Court of Vermont

April 6, 1893

GENERAL TERM, 1893

Debt upon bond. Heard at the the September term, 1892, upon general demurrer to the declaration, MUNSON, J., presiding. Demurrer overruled. The defendant excepts.

Judgment affirmed and cause remanded.

Waterman Martin & Hitt for the defendant.

Before ROSS, CH. J., TAFT, ROWELL AND START, JJ.

OPINION

START

It is claimed that the declaration does not show a cause of action. It sets forth a bond with its condition and a breach thereof. The bond is under seal and imports a consideration and it is not necessary to state the consideration that induced its execution. The defendant cannot be heard to say that it is without consideration. Chitty on Pleadings, vol. 1, p. 366; Chitty on contracts, p 4.

It was not necessary to allege that a will was made by Abigail L. Carden, or that the plaintiff was a beneficiary under it, or that the defendant had a right to waive it. The defendant obligated himself to abide by, accept of and not waive the provisions of the last will of Abigail L. Carden, made on the 30th day of April, 1891. The declaration alleges that Abigail L. Carden deceased in the summer of 1891; that her said will was duly probated on the 25th day of July, 1891, and that on the 11th day of February, 1892, the defendant waived its provisions. From these allegations the condition and breach of the bond sufficiently appear without setting forth the defendant's right to waive the provisions of the will or the plaintiff's rights under it. The defendant's undertaking was to accept of, and not waive its provisions. The question of whether he had a right to waive it is immaterial. He has done so and thereby subjected himself to an action on the bond for a breach of its express condition. The extent of the plaintiff's interest in the estate under the will or otherwise is material only upon the measure of damages, and this question is not now before us. The defendant had a right to give and the plaintiff to take the bond; the performance of its condition is in no way dependent upon the plaintiff's interest in the estate, and for a breach thereof the plaintiff is entitled to recover at least nominal damages.

The defendant insists that the alleged undertaking of the defendant is contrary to public policy, and that for this reason the bond should be declared void. Courts will not declare contracts void on grounds of public policy except in cases free from doubt, and prejudice to the public interest must clearly appear before a court is justified in pronouncing an instrument void on this account. In Richmond v. Dubuque R. R. Co., 26 Iowa 191, it is said, "that the power of courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt." In Mellayne v. Larkin, 3 Pin. 123 (56 Am. Dec 164,) Howe, J., said, "He is the safest magistrate who is more watchful over the rights of the individual than over the convenience of the public, as that is the best government which guards more vigilantly the freedom of the subject than the rights of the State." In Richardson v. Mellish, 2 Bing. 229, (9 E.C.L. 557,) Sir James Burrough said: "I protest as my lord has done against urging too strongly upon public policy; it is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never urged at all but...