Caret v. Mackey

• Decision Date: 15 April 1890
• Citation: 82 Me. 516,20 A. 84
• Parties: CARET v. MACKEY.
• Court: Maine Supreme Court

20 A. 84

82 Me. 516

CARET

v. MACKEY.

Supreme Judicial Court of Maine.

April 15, 1890.

(Official.)

Report from supreme judicial court, York county.

This was an action of debt on the bond of the defendant, made and given to the plaintiff, then his wife, September 12, 1882, for her separate support. Besides a general count in the declaration for the penal sum of the bond, the plaintiff also declared for 45 monthly payments of $30 each.

April 13, 1883, a divorce a vinculo, with a decree for a gross sum, $690, as alimony, and the right to resume her maiden name, was granted to the plaintiff by the court in Florida, where both parties had their domicile.

The case was considered by the law court, on stipulation of the parties, with jury powers, and were to enter such judgment as the law and the facts warranted upon the legally admissible evidence.

G. C. Yeaton and H. H. Burbank, for plaintiff. R. P. Tapley and H. Fairfield, for defendant.

PETERS, C. J. The plaintiff declares on the instrument adduced below as a penal bond, and also upon the covenants expressed in it: "This agreement, made this twelfth day of September, 1882, between Jonathan I. Mackey and Alicia C. Mackey, both of Florida, and residents of Jacksonville in said Florida, witnesseth that, whereas my wife, Alicia C. Mackey, has this day expressed her desire to me that a separation of relations of man and wife between ourselves might be effected, and for good reasons known to herself, be it known that I hereby consent to said separation, and, in consideration of my duty to her as her husband, I hereby agree to pay to her monthly, through the Hon. M. A. McLain, of Jacksonville, aforesaid, the sum of thirty dollars per month, on the first day of each month, the first installment or payment being and to become due November 1, 1882. And I hereby bind myself to the well and true payment of thirty dollars aforesaid monthly, so long as she shall maintain good behavior and shall (not) have remarried, and this I bind myself to do under a penalty of five thousand dollars, to be recovered by her in any court of law by attachment upon my property and of myself, which sum of five thousand dollars aforesaid I hereby agree shall be considered a forfeiture upon my part to her. And this thirty dollars per month is in addition to the one hundred and fifty dollars which I have already paid her at the making: of this agreement. And this I do freely and understandingly.

"Witness my hand and seal this 12th September, 1882.

"J. I. MACKEY. [Seal.]"

The instrument was acknowledged before H. M. Sylvester, a notary public, and witnessed by him.

The plaintiff cannot recover on both forms of declaration.

She elects to recover the penal sum. We have no doubt the instrument declared on is a penal bond. It contains all the elements of one, though perhaps not expertly put together.

"If I, by deed, covenant or promise to do a thing, and then say, to perform which promise I bind myself in twenty pounds, this is a good obligation in law." No set form of words is necessary, as see numerous illustrations in Bacon's and Dane's Abridgements, tit. "Obligation." We are of opinion that the $5,000 are a penalty, and not liquidated damages.

Passing the points made on the pleadings, an important question arises whether an agreement for separate support is valid in this state. We do not see why not. It is said in argument that there has never been a judicial decision in the state touching the question. That indicates that the danger of a frequency of such cases must be small indeed.

Certainly such an agreement comes within the spirit of our late statute, which provided for a divorce from bed and board; the marital tie remaining. There never has been any judicial expression in this state against an agreement for separate support. The doctrine is upheld in an early Massachusetts case, when this state was a, part of that commonwealth, and the precedent is therefore as binding here as it is there.

In Page v. Trufant, 2 Mass. 159, (decided in 1806,) it was held that "a bond from the husband to the father of the wife for her maintenance, after a voluntary separation, is a valid contract." According to the practice of that day, each judge sitting expressed his opinion on the question, and all favored the doctrine. PARSONS, C. J., closed the discussion in these words: "It in fact appears upon the record that the consideration was legal and meritorious, as it was made to secure a separate maintenance for the wife, who separated from her husband for their mutual comfort, to avoid the effect of jealousies and animosities that existed between them."

In Fox v. Davis, 113 Mass. 255, the doctrine is fully recognized, and was applied in that case. Mr. Bishop, in 1 Bish. Mar. & Div. (6th Ed.) bk. 5, c. 39, enumerates the states, citing their cases, where the doctrine is either allowed or disallowed; and it appears to have been accepted by most of the states. In England it is established by act of parliament. The condition on which it rests is that separation has already taken place, or that the agreement is made in contemplation of an immediate separation which takes place as contemplated.

The only objection to such contracts is the encouragement which may be afforded for married parties to separate from each other. We think that amounts to little or nothing under our liberal divorce system. Parties greatly prefer divorce and alimony to mere separation.

There may be a distinction to be observed. Some contracts of separation might offend public policy, and others not. Certainly there are cases where a wife would be justified in separating from her husband, and asking a support from him notwithstanding the separation. There was undoubtedly good cause for separation in the present case. The evidence in the divorce case, to be alluded to hereinafter, which is a part of the record of this case, shows that the separation was caused by cruelties inflicted by him upon her. He had frequently choked her severely, and habitually abused her in different ways. She proves that she has been a person of good behavior since separation, as the contract requires of her, and that she has not married again.

It is contended, however, by the defendant,...