Miller v. Miller

• Decision Date: 06 June 1889
• Citation: 78 Iowa 177,42 N.W. 641
• Parties: MILLER v. MILLER.
• Court: Iowa Supreme Court

78 Iowa 177

42 N.W. 641

MILLER

v.MILLER.

Supreme Court of Iowa.

June 6, 1889.

On rehearing. For opinion on appeal, see 35 N. W. Rep. 464.

*641Cole, McVey & Clark, for appellant.

C. P. Holmes, for appellee.

GRANGER, J.

Since the former hearing of this case a majority of the members of this court have retired, and others are substituted, and of those retired are J. J. ADAMS and SEEVERS, who did not concur in the former holding. The former opinion, prepared by Chief Justice ADAMS, states in general terms the conclusion of the majority, and very briefly expresses some reasons for the dissent. One reason for granting the rehearing is that the views of the court may be expressed in support of its conclusions, whatever they may be.

The action is by a wife against her husband, to recover on a contract, which is in the following words: “This agreement, made this 5th day of August, 1885, between the undersigned, husband and wife, in the interest of peace, and for the best interests of each other and of their family, is signed in good faith by each party, with the promise, each to the other, and to their children, that they will each honestly promise to help each other to observe and keep the same, which is as follows, to-wit: All past subjects and causes of dispute, disagreement, and complaint, of whatever character or kind, shall be absolutely ignored and buried, and no allusion thereto, by word or talk, to each other, or any one else, shall ever be made. Each party agrees to refrain from scolding, faultfinding, and anger, in so far as relates to the future, and to use every means within their power to promote peace and harmony. That each shall behave respectfully, and fairly treat the other. That Mrs. Miller shall keep her home and family in a comfortable and reasonably good condition, and Mr. Miller shall provide for the necessary expenses of the family, and shall, in addition thereto, pay Mrs. Miller, for her individual use, two hundred dollars per year, payable, $16 2/3 per month, in advance, so long as Mrs. Miller shall faithfully observe the terms and conditions of this agreement. They agree to live together as husband and wife, and observe faithfully the marriage relations, and each to live virtuously with the other.” The petition recites the contract, avers a breach of its conditions for payment of the monthly installments, and asks for judgment.

The petition is assailed by demurrer on two grounds: (1) That the contract for the payment of the money is void as against public policy; and (2) that it is not supported by a consideration. The district court sustained the demurrer, and the plaintiff, relying upon her petition, appeals from a judgment against her.

1. The theory upon which appellant seeks to escape the force of the claim that this contract is against public policy is that the agreement to pay the yearly or monthly amounts is but a post-nuptial settlement of such amount in favor of the wife, and therefore sanctioned by law. We must consider the averments of the petition in the light of the contract, which is the basis of recovery, and statements of the petition not in harmony with a right of recovery on the contract are not well pleaded, and are not admitted by the demurrer. We think it important to first settle the question, for what is the plaintiff entitled to recover, if at all? The contract is decisive of this question, and for the purposes of the demurrer will override any opposing statements of the petition. The contract recites that “Mr. Miller shall provide for the necessary expenses of the family, and shall, in addition thereto, pay Mrs. Miller, for her individual use, $200 per year, payable $16.2/3 per month, in advance, so long as Mrs. Miller shall faithfully observe the terms and conditions of their contract.” Whetever may have induced the making of the contract, one thing is certain,--the ground of recovery from time to time is a faithful *642observance of the contract. If payment of the amounts is enforced, this observance must be pleaded, and, if denied, it must become a matter of judicial inquiry. Now, looking to the contract, we find that the plaintiff has agreed to do just what is demanded by her marital relations and is essential to domestic felicity. If she does this, under the letter of her contract, she may recover; if she does not, she cannot recover. Conceding, for the purpose of this branch of the case, that the contract is supported by a consideration independent of her promise therein, and looking exclusively to the question, is its enforcement against public policy? we may properly ask, does it not contain...