Henderson v. Spratlen

• Citation: 98 P. 14,44 Colo. 278
• Parties: HENDERSON v. SPRATLEN.
• Decision Date: 06 July 1908
• Court: Supreme Court of Colorado

98 P. 14

44 Colo. 278

HENDERSON v. SPRATLEN.

Supreme Court of Colorado

July 6, 1908

Rehearing Denied Nov. 11, 1908.

Appeal from District Court, City and County of Denver; Peter L Palmer, Judge.

Action by Myrtle Henderson against Louis F. Spratlen. Judgment for defendant, and plaintiff appeals. Reversed.

Whitford & May and O. N. Hilton, for appellant.

C. F Clay and Geo. P. Steele, for appellee.

STEELE C.J.

The plaintiff alleged in her complaint, and proved, that the defendant promised to marry her, and at divers and innumerable times thereafter, avowing his sincerity of purpose to marry her, he procured her to cohabit with him; that said cohabitation began in the winter of 1889 and continued up to the month of July, 1893. She also alleges and proves that at the request of the defendant she submitted to several surgical operations, by reason of which she sustained very serious and painful injuries to her person and that by reason of the said operations she has been sick, sore, and lame, and will continue so to be, and she has also received great and prolonged nervous shocks, and that the said operations and injuries have resulted in shattering and ruining her nervous system and have rendered her, and still render her, and will always render her, weak, sickly, and wholly unable and unfit to earn a livelihood and to maintain and support herself, and unfit to marry and to perform domestic and wifely duties, that by reason of the operations aforesaid, and as a result of her being unable to procure proper attention, through the failure of the defendant to perform the terms of his agreement to have her properly taken care of, it will be necessary to have one of her legs amputated. It also appears that in the year 1893 the defendant visited plaintiff at her home in St. Joseph, Mo., and then and there informed her that he could not marry her because his parents objected to the marriage, and that he then and there promised her, as stated by the plaintiff: 'If I would release him from his promise of marriage, he would take care of me and support me just so long as I suffered from this limb or any injuries'--which said promise on the part of the defendant the plaintiff then and there accepted, although the plaintiff was at that time, and at all times previous thereto, ready and willing to marry the defendant. It developed upon the trial that in the year 1897 the plaintiff had married a man by the name of Lee, and had lived with him for two or three years as his wife, when he procured a divorce. The court instructed the jury to return a verdict in favor of the defendant, which it did, and thereupon judgment in favor of the defendant was duly entered. From this judgment, the plaintiff took an appeal to the Court of Appeals.

The allegations of the complaint are sustained by the evidence and it appeared from the testimony that the defendant had paid to the plaintiff certain sums of money upon account of his contract to maintain and support plaintiff as late as the year 1902. The defendant claims in support of the judgment: (1) That the alleged contract is void as against public policy and good morals. (2) That there is no valid consideration for the contract. (3) That there could be no novation of a void contract. (4) That the contract is too indefinite and uncertain. In support of the defendant's contention that the alleged contract is void as against public policy and good morals, counsel claim that the testimony shows that the promises of marriage as made were in consideration of present and future intercourse and cohabitation, which ended in the summer of 1893, and...