Lowe v. Doremus

• Decision Date: 18 June 1913
• Citation: 87 A. 459,84 N.J.L. 658
• Parties: LOWE v. DOREMUS.
• Court: New Jersey Supreme Court

87 A. 459

84 N.J.L. 658

LOWE

v. DOREMUS.

Court of Errors and Appeals of New Jersey.

June 18, 1913.

(Syllabus by the Court.)

Error to Supreme Court.

Action by May Lowe against Cornelius Doremus, executor, etc. Judgment for plaintiff, and defendant brings error. Reversed.

This suit was brought to recover the sum due on a promissory note made by Henry Van Riper, during his lifetime, of which the following is a copy:

"Paterson, N. J., August 28, 1909.

"Thirty days after death, I promise, or authorize my executor or administrator, to pay to the order of May Wood, the sum of three thousand ($3,000) dollars at the first Nation al Bank of Paterson. Value received.

"Henry Van Riper.

"Witness: James F. Carroll.

"Indorsements:

"May Wood.

"May Lowe."

May Lowe is the married name of the plaintiff.

In answer to the interrogatories presented to the plaintiff she stated that the consideration for the making and delivery of the note was "continuing and staying in the employ of, and not marrying until after the death of the maker, Henry Van Riper, and attending to and caring for the wants of said Henry Van Riper until his death."

At the close of the testimony, defendant's counsel moved for the direction of a verdict upon the ground, inter alia, that the contract sued on was in general restraint of marriage and void as against public policy. The trial court denied the motion, and of its own motion directed a verdict for the plaintiff and allowed an exception to the defendant who assigns error thereon.

Michael Dunn, of Paterson, and Joseph H. Lecour, of Belleville, for plaintiff in error.

James F. Carroll, of Paterson, for defendant in error.

GARRISON, J. (after stating the facts as above). It was an error to direct a verdict for the plaintiff, and it was likewise error to refuse to direct a verdict for the defendant.

The contract sued on was in general restraint of marriage, and consequently void. In Sterling v. Sinnickson, 5 N. J. Law, 871, *756, the action was on a sealed bill, the maker of which promised to pay $1,000 to the payee provided he (the payee) was not lawfully married in the course of six months from the date thereof.

It was held that the agreement was void.

The grounds of this decision as stated by Chief Justice Kirkpatrick was that the law regards marriage as at the foundation of the social order, and hence removes out of the way every unreasonable restraint upon it; and that a restraint "upon the freedom of choice and of action in a...