Grime v. Borden

• Citation: 44 N.E. 216,166 Mass. 198
• Parties: GRIME v. BORDEN (three cases).
• Decision Date: 23 May 1896
• Court: United States State Supreme Judicial Court of Massachusetts

166 Mass. 198

44 N.E. 216

GRIME v. BORDEN (three cases).

Supreme Judicial Court of Massachusetts, Bristol.

May 23, 1896

COUNSEL

Jennings & Morton, for plaintiff.

John W Cummings and Charles R. Cummings, for defendant.

OPINION

FIELD C.J.

These are three actions on the same agreement, all brought for the use and benefit of Mary A. Borden, to recover the sum of $100 a month for different periods of time, under the following clause of the agreement: "Fourth. Said husband shall pay to said wife, upon the execution of these presents, the sum of two hundred dollars in cash, and shall also, between the first and fifth days of each and every month hereafter beginning with the first day of August, A.D.1892, pay to the said wife the sum of one hundred dollars, for the support and maintenance of herself, also for the support and maintenance of the said Elizabeth during her minority." The writ in the first suit is dated on February 19, 1894, and the suit is to recover the balance due for the months from December 1892, to December, 1893, inclusive. The writ in the second suit is dated on June 13, 1894, and the suit is to recover the payments due for three months from March, 1894, to June, 1894, inclusive. The writ in the third suit is dated October 15, 1894, and the suit is to recover the payments due for the months from July, 1894, to October, 1894, inclusive. At the time of the execution of this agreement, William A. Borden and Mary A. Borden were husband and wife, and had separated from each other, and were living apart, and they have continued to live apart ever since. Mrs. Borden has fully kept her part of the agreement, but Mr. Borden has not paid in full the $100 per month, according to the agreement. The child Elizabeth referred to in the agreement was born in February, 1875, and was therefore a minor at the time when the agreement was executed. She was married in October, 1893, and is now living with her husband, but until her marriage she lived with her mother.

It is said in Fox v. Davis, 113 Mass. 255, of an agreement on the part of the husband to pay money to a trustee for the support of his wife while she lives apart from him, that "the great weight of authority sustains the validity of such contracts where the separation has taken place, or is to take place immediately. But, where the agreement is made in contemplation of future separation, the current of authority is against its validity." Whether the provision of the agreement that the wife "shall have the sole care and custody of their minor child Elizabeth during her minority, without any interference whatsoever on the part of said husband," is void as against public policy or not, it is, we think, separable from the promise of the husband to pay the $100 a month to his wife; and it must be taken on the report that the wife has supported the child during her minority, or at least that the husband has not been called upon to support her. See Vansittart v. Vansittart, 2 De Gex & J. 249; Wodell v. Coggeshall, 2 Metc. (Mass.) 89; State v. Smith, 6 Greenl. 462; Mercein v. People, 25 Wend. 64.

The real difficulty in the present cases arises from the form of the agreement, the first three clauses of which are as follows: "Whereas, certain unhappy differences have arisen between the said husband and wife, by reason whereof they have agreed to live separate and apart from each other for the future, and to enter into the arrangement...