Cooper v. Cooper

• Citation: 17 N.E. 892,147 Mass. 370
• Parties: COOPER v. COOPER et al.
• Decision Date: 05 September 1888
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 370

17 N.E. 892

COOPER v. COOPER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 5, 1888

COUNSEL

Stillman B. Allen and Thomas Savage, for plaintiff.

The marriage of January, 1869, between plaintiff and defendants' intestate, was void ab initio. Pub.St. c 145, § 4. The plaintiff is therefore barred from any claim for dower or alimony. 1 Bish.Mar. & Div. (6th Ed.) § 301; Chase v. Chase, 55 Me. 21. By the terms of the statute referred to she is barred from the rights of a widow and the same statute pronounces her whole life with her (supposed) husband, and the services performed for him during those years, not those of a wife, but of an outside party. The entire consideration of her contract being illegal, her only remedy is to sue on the implied contract of intestate to recompense her for her service and labor. Thurston v Percival, 1 Pick. 415; Metc. Cont. 7. The law will raise an implied contract where there is no express promise, or where the consideration is subsequently shown to be illegal, to pay for services performed for and accepted by another. This is the position of plaintiff and defendants' intestate in the case at bar. Defendants' only answer is that the labor was performed gratuitously, under plaintiff's belief that she was intestate's wife. But said belief, and plaintiff's action in accordance therewith, were caused by intestate's own false representations, willfully made, and neither he nor his representatives will be allowed to take advantage of his own wrong. Cartwright v. Bate, 1 Allen, 514. A woman who has been deceived into a void marriage with a man, who already has a wife living, may, on discovering the deception, sue the supposed husband for damages arising from his fraudulent act, and for services during cohabitation. 2 Bish.Mar. & Div. (6th Ed.) §§ 690, 696; Blossom v. Barrett, 37 N.Y. 434. This action in assumpsit survives against intestate's administrators, and is the proper form of action in the premises. If a man take a horse from another, and bring him back again, the owner may maintain trespass against the wrong-doer, or, after his death, an action for the use and hire against the executor. Lord MANSFIELD, in Hambly v. Trott, Cowp. 371; quoted by JACKSON, J., in Cummings v. Noyes, 10 Mass. 435. See, also, Jones v. Hoar, 5 Pick. 285, 286. By parity of reasoning, the plaintiff may now bring her action for labor and service performed, against the administrators of the wrong-doer. Both they and the heirs are estopped from denying the liability. Donnelly v. Donnelly, 8 B.Mon. 113; Strode v. Strode, 3 Bush. 227. There are two causes in the reports where the facts were almost exactly similar to those in the case at bar. Higgins v. Breen, 9 Mo. 497; Fox v. Dawson, 8 Mart. (La.) 94.

W.B. French, for defendants.

Upon the facts stated, there is no basis upon which an implied contract can rest, and no consideration for an implied promise. Pelly v. Rawlins, Peake Ad.Cas. 226; Osborn v. Hospital, 2 Strange, 728; Dearborn v. Bowman, 3 Metc. 155; McGilvery v. Capen, 7 Gray, 523; Shepherd v. Young, 8 Gray, 152; James v. Cummings, 132 Mass. 78. The law will not imply a promise to pay for services rendered between persons living in the relation of husband and wife, although the labor was performed without reference to their cohabitation. Robbins v. Potter, 11 Allen, 588, 98 Mass. 532.

OPINION

W. ALLEN, J.

The plaintiff and James W. Cooper intermarried in the year 1869 and lived together as husband and wife until his death, in 1885. After his death, the plaintiff learned that a former wife, from whom he had not been divorced, was living, and brought this action of contract against his administrator, to recover for work and labor performed by her as housekeeper while living with the intestate. The court correctly ruled that when the parties lived together as husband and wife there could be no implied promise by the husband to pay for such work. The legal relations of the parties did not forbid an express contract between them, but their actual relations, and the circumstances under which the work was performed, negatived any implication of an agreement or promise that it should be paid for. Robbins v. Potter, 11 Allen, 588, 98 Mass. 532. The case at bar cannot be distinguished from that cited, unless upon the grounds that the plaintiff believed that her marriage was legal, and that the intestate induced her to marry him by falsely representing that he had been divorced from his former wife. But the fact that the plaintiff was led by mistake or deceit into assuming the relation of a wife, has no tendency to show that she did not act in that relation; and the fact that she believed herself to be a wife excludes the inference that the society and assistance of a wife which she gave to her supposed husband was for hire. It shows that her intention in keeping his house was to act as a wife and mistress of a family, and not as a hired servant. There was clearly no obligation to pay wages arising from contract; and the plaintiff's case is rested on the ground that there was an obligation or duty imposed by law from which the law raises a promise to pay money, upon which the action can be sustained. The plaintiff's remedy was by an action of contract for breach of promise to marry, or, if she was induced to marry by false representations, of tort for the deceit. Blossom v. Barrett, 37 N.Y. 434. Her injury was in being led by the promise or the deceit to give the fellowship and assistance of a wife to one who was not her husband, and to assume and act in a relation and condition that proved to be false and ignominious. The duty which the intestate owed to her, was to...