Johnson v. Johnson

• Citation: 14 S.W.2d 805
• Decision Date: 13 March 1929
• Docket Number: (No. 1012-5197.)
• Parties: JOHNSON v. JOHNSON.
• Court: Supreme Court of Texas

14 S.W.2d 805

JOHNSON v. JOHNSON.

(No. 1012-5197.)

Commission of Appeals of Texas, Section B.

March 13, 1929.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by Hazel S. Johnson against Gilbert S. Johnson. Judgment in which defendant recovered an offset was affirmed , and plaintiff brings error. Reversed and rendered.

Lee, Lomax & Wren and W. D. Caldwell, all of Fort Worth, for plaintiff in error.

McLean, Scott & Sayers, of Fort Worth, for defendant in error.

SPEER, J.

The disposition of this case involves a construction of the following contract:

"This agreement made and entered into this 10th day of September, 1919, by and between Gilbert S. Johnson, hereinafter called first party and Hazel S. Johnson, his wife, hereinafter called the second party, both of the city and county of San Francisco, State of California.

"Witnesseth, that, Whereas the parties hereto are now husband and wife, and differences have arisen and do now exist between them the result whereof is that the said parties have lived separate and apart since on or about the first day of November, 1914, and have become definitely and finally convinced that it will be impossible for them now, or hereafter, to live together as husband and wife, and the second party is about to commence suit for divorce against the first party, and "Whereas the parties desire to settle all questions as to their respective property rights between themselves, and have been fully and independently advised by their respective counsel in regard thereto.

"Now, therefore, in consideration of the mutual covenants each to the other running, the parties hereto have agreed and do hereby agree as follows, to-wit:

"First: The personal effects of the parties and the household effects of the community have been heretofore divided between them,

"Second: The first party does and by these presents contract, convenant and agree, and bind himself, his estate, his heirs, executors and administrators to well and truly pay to the second party the sum of one hundred and fifty dollars ($150.00) on the first day of each and every calendar month hereafter, and commencing on the first day of September, 1919, during the life time of said second party, or until she remarries, the said sum of one hundred and fifty dollars ($150.00) to be delivered to the said second party, or to be deposited to her sole and exclusive account in some bank designated by the said second party, or her attorney, acting under her express authority.

"Third: That the said first party does by these presents contract, covenant, and agree and hereby binds himself, his estate, heirs, executors and administrators to well and truly pay the said second party, in addition to the various sums of money heretofore agreed by him to be paid to said second party, the sum of Twenty-five hundred dollars ($2500.00), said sum of twenty-five hundred dollars to be paid by the said first party to the said second party as follows, to-wit:

"The sum of five hundred dollars ($500.00) on the first day of March, 1920; the sum of five hundred dollars on the first day of September, 1920; the sum of five hundred dollars on the first day of March, 1921, the sum of five hundred dollars on the first day of September, 1921; and the sum of five hundred dollars on the first day of March, 1922; the said installments of five hundred dollars to be paid to the said second party at said times by delivering the same to the said second party, or by depositing the same to her sole and exclusive account in some bank designated by the said second party or by her attorney acting under her express authority.

"Fourth: The said second party does by these presents agree to accept the said several sums of one hundred and fifty dollars ($150) per month on the first day of each and every calendar month hereafter, commencing on the first day of September, 1919, and during her life, or until her remarriage, and the additional sum of twenty-five hundred dollars ($2500.00) payable in installments as hereinabove set forth, as and for and in full of her right and claim in and to any interest in the community property of herself and the said first party, as well as in full of her right and claim to alimony, support and maintenance from the said first party.

"Fifth: The first party upon the execution of this agreement hereby agrees to pay to the said second party the sum of seventy-five dollars ($75.00) the said second party hereby agrees to accept said sum in full payment of any and all right to alimony or maintenance to and including the 31st day of August, 1919.

"Sixth: The said parties hereto do hereby agree that whatever property the said first party now has, be the same community or separate property, and whatever property he may acquire shall henceforth be considered as and be his separate property, and that whatever property the said second party now has, be the same community or separate property shall henceforth be considered as and be her separate property.

"Seventh: The said parties hereto further agree that the only child of the said parties, Junior Johnson, of the age of about twelve years and ten months, shall henceforth be and remain in the custody and care of said second party, said first party to have the right to see said child at any reasonable and convenient time.

"In witness whereof, the parties hereto have hereunto set their hands the day and year first above written.

                                "[Signed] Gilbert S. Johnson
                                          "Hazel S. Johnson."
                

Hazel S. Johnson sued her former husband, Gilbert S. Johnson, upon the above contract to recover for sums then due and unpaid; and the defendant, under a plea alleging the failure of consideration to the extent of $60 per month for the support of their child, recovered an offset in that amount, and upon appeal that judgment was affirmed. (Tex. Civ. App.) 6 S.W.(2d) 175. The writ of error has been granted to Hazel S. Johnson.

It is first contended, and the Court of Civil Appeals sustained that contention, that the matter had been previously adjudicated in a suit in the Seventeenth district court of Tarrant county, wherein this plaintiff in error had recovered in full for certain monthly installments — that the defense urged...