Merrill v. Peaslee

• Decision Date: 30 March 1888
• Parties: MERRILL v. PEASLEE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 460

16 N.E. 271

MERRILL v. PEASLEE et al.

Supreme Judicial Court of Massachusetts, Essex.

March 30, 1888

COUNSEL

Henry Carter and J.P. & B.B. Jones, for plaintiff.

The plaintiff had a legal capacity to contract with Hiram Peaslee, and can enforce this note if it was given for a legal consideration. It is well settled law in this commonwealth that a note given to a third party for a consideration furnished by the maker's wife is founded on a valid consideration, or, in other words, that the wife has a legal capacity to furnish a valid consideration for her husband's contract with a third party. Nichols v Nichols, 136 Mass. 256; Butler v. Ives, 139 Mass. 202. In support of the rule that a consideration moving wholly from a married woman to her husband will support his conveyance to or contract with a third person for her benefit, the following cases are cited: Bullard v Briggs, 7 Pick. 533; Stearns v. Bullen, 8 Allen, 581; Degnan v. Farr, 126 Mass. 297; Bank v. Tavener, 130 Mass. 407; Holmes v Winchester, 133 Mass. 140. See, also, 2 Kent, Comm (11th Ed.) 171; Fuller v. Lumbert, 78 Me. 325, 5 Atl.Rep. 183; Hale v. Plummer, 6 Ind. 121; Andrews v. Andrews, 28 Ala. 432; Fisher v. Filbert, 6 Pa.St. 61. In Fisher v. Filbert, supra, the court decided that a bond from a husband to a trustee for the use of his wife creates a separate interest in his wife, and, if intended as security for his future good behavior, may be enforced as an absolute bond, in case of a breach of that condition. The note in suit is founded upon a valuable consideration. The wife had a legal right to live apart from her husband and to obtain a divorce and alimony from him. This note was given in consideration that she would relinquish said rights, and she did so. The abandonment of a legal right is a good consideration. Smith v. Algar, 1 Barn. & Adol. 603; Morton v. Burn, 7 Adol. & E. 19; Pilkington v. Green, 2 Bos. & P. 151; Sugars v. Brinkworth, 4 Camp. 46; Jennison v. Stafford, 1 Cush. 168; Vinal v. Richardson, 13 Allen, 527. The acquisition of a right, benefit, or advantage to which a party is not entitled, or his release from a liability to which he is subject, is a good consideration for his promise to pay. Cutter v. Cochrane, 116 Mass. 408. Moreover, the plaintiff, by accepting the trust and signing the sealed agreement, incurred a legal liability as trustee. The evidence then tended to show that, in consideration of the execution and delivery of the note, the plaintiff incurred a legal liability. Assuming a legal liability at the request of another is a good consideration for the other person's promise. "Any trouble or labor, however slight, undertaken by the plaintiff at the request of the defendant, will support a promise by the latter, and render it binding, although such trouble and labor may have been unsuccessful, and productive of no benefit or advantage to the defendant." 1 Add.Cont. p. 21, § 9; Cutler v. Dickinson, 8 Pick. 386. In this case, then, the contract was between parties who had a legal capacity to enter into a contract with each other and was founded upon a valid consideration. In the class of cases of which Kneil v. Egleston, 140 Mass. 202, 4 N.E. 573, is a type, the court in deciding that a wife had not a legal capacity to contract with or sue her husband, recognized the doctrine that she had a legal capacity to furnish a consideration for his agreement. In Phillips v. Frye, 14 Allen, 36, the wife paid her husband's debts with property which descended to her, but which belonged to him. It was held that his note, founded on that transaction, was valid. It is evident that the husband received no consideration for the note, and the case is not authority for the position that a wife has not a legal capacity to furnish a consideration. Bank v. Tavener, 130 Mass. 407; Fowle v. Torrey, 135 Mass. 87. The note was properly declared on without pleading the contemporaneous agreement. Sexton v. Wood, 17 Pick. 110.

Chas. W. Bell and Wm. H. Moody, for defendants.

The claim that the waiver of a supposed right to have a divorce is a good consideration for a promise by the husband proceeds upon a misapprehension. The wife has been wronged, in violation of the duties of matrimony. The court does not undertake to give recompense for this wrong. There is no recompense for it in any way. It cannot be turned into money in any way. If a man owes me money, the court will give me a judgment in satisfaction of my claim; if a man strikes me, they will give me damages. In either case I have a right to compensation, which I can sell to him, and take the money, without the intervention of the court. But if a husband commits adultery, or is guilty of cruelty, the court will not give the wife compensation to make her whole. What the court attempts to do is something entirely different in its nature. The court is to find that there has been such a breach of marital duty that the wife ought not to be required longer to perform the duties of a wife. Thus, cruelty is defined by Bishop as "any conduct in one of the married parties which furnishes reasonable apprehension that the continuance of the cohabitation would be attended with bodily harm to the other." But if the wife, in consideration of money paid to her, is willing to continue the cohabitation, it is conclusive evidence that she, at least, has no apprehension of harm; and, if the facts were made to appear to the court as they appear to her, no court would grant a divorce. In other words, the very fact that it is attempted to make a consideration of the surrender of such a supposed right shows that it did not exist. If the relations of the parties are such, after the alleged violence, that they can still render to each other the love, affection, and duty which the marriage bond requires, there could be no divorce; if they are not, it is repulsive and impossible that these duties can be performed in consideration of money paid. The courts have held such contracts void in Van Order v. Van Order, 8 Hun. 315; Copeland v. Boaz, 9 Baxt. 223; Roberts v. Frisby, 38 Tex. 219. And the same doctrine is laid down in 1 Bish.Mar. & Div. § 657. It may be that the compromise of a pending proceeding with its rights of alimony and the like might stand on different ground, especially if it did not include the restoration of marital rights, but contemplated only a separation by contract, instead of one by decree. If the alleged consideration be construed to be a promise, it was a promise not binding upon the wife, and, by elementary principles, such a promise is not a good consideration for a counter-promise. If the alleged consideration be construed to be a performance by the wife, the performance was simply of duties which she was already bound to perform by her marriage obligation until she had been released by a decree of a court having jurisdiction of the marriage status. A performance of a duty which one is already bound to perform does not furnish a consideration for a promise. Pool v. Boston, 5 Cush. 219; Davies v. Burns, 5 Allen, 349; New Haven Co. v. Hayden, 117 Mass. 433; Brophy v. Marble, 118 Mass. 548. Whatever the wife's motive was, the law will intend that the marital duties were performed in pursuance of the legal obligation to perform them. If there has been a breach of marital duty by a husband or wife, there remains to the injured party the duty of forgiveness, if possible; and it is against public policy to allow marital duties and injuries to become matters of barter and sale.

W. ALLEN, J.

The note was given to carry out a contract between husband and wife, by which, in consideration that she should live with him as his wife during their joint lives, he was to cause to be paid to her $5,000 after his decease, if she survived. The consideration of the note was the agreement, or the performance of the agreement, of the wife to live in marital relations with her husband. It was not to perform some service for him which could be hired, as to keep his house or to nurse him in sickness, but to give him the fellowship and communion of a wife. This is not a service which the wife can sell, or the husband buy. Perhaps a husband can hire his wife to do anything for him which a servant can be hired to do, or can buy of her anything that is the subject of barter; but a servant cannot be hired to fulfill the marital relation, and the fellowship of the wife is not an article of trade between husband and wife. Like parental authority and filial obedience, conjugal consortium is without the range of pecuniary considerations. The law fixes and regulates it on public considerations, and will not allow the parties to discard and resume it for money. It is the same where the misconduct of one party has given to the other the option to withdraw conjugal fellowship. It is not a mere personal right, affecting only the parties to the marriage, but a right which is an incident of the status of marriage, and which affects children, the family, and society, and which must be exercised upon considerations arising from the nature of the right. It is given to the injured party, to be used in the interests of justice and of society. It is as much against public policy to restore interrupted conjugal relations for money as it is to continue them without interruption for the same consideration. The right of condonation is not exercised for the sake of justice to the injured party, or with regard to the rights of others, or the interests of the public, when it is sold for money; and the law cannot recognize such a consideration for it. It implies forgiveness, founded on the supposed penitence of the wrong-doer, and the hope that he will not again offend. Resumed marital intercourse, after a justifiable separation, without...