Montgomery v. Montgomery

• Decision Date: 04 April 1910
• Citation: 127 S.W. 118,142 Mo. App. 481
• Parties: MONTGOMERY v. MONTGOMERY et al.
• Court: Missouri Court of Appeals

127 S.W. 118

142 Mo. App. 481

MONTGOMERY v. MONTGOMERY et al.

Springfield Court of Appeals. Missouri.

April 4, 1910.

1. HUSBAND AND WIFE (§§ 39, 205) — RIGHT TO SUE EACH OTHER — CONTRACTS.

A man and his wife may, under Rev. St. 1899, § 4335 (Ann. St. 1906, p. 2378), contract with each other, sue, and be sued by each other, the same as other parties; and hence a wife may sue her husband on a contract given to her on entering into the marriage relation binding him to treat her as a husband should.

2. HUSBAND AND WIFE (§ 39) — CONSIDERATION — PLEADING.

A contract in writing for the payment of money given by a husband to his wife, binding him to treat her as a husband should, imports a consideration under the provisions of Rev. St. 1899, § 894 (Ann. St. 1906, p. 830), providing that all instruments in writing for the payment of money shall import a consideration, and hence a consideration need not be pleaded in a suit on the contract.

3. CONTRACTS (§ 108) — PUBLIC POLICY — MORALS.

Whenever any contract conflicts with the morals of the time and contravenes any established interest of society, it is void as against public policy.

4. CONTRACTS (§ 111) — MARRIAGE — PUBLIC POLICY.

A contract conditioned for the payment of money given by a husband to his wife on entering into the marriage relation, binding him to treat her as a husband should, is not void as against public policy, since it was to uphold the marriage.

5. CONTRACTS (§ 111) — CONSIDERATION — MARRIAGE — HUSBAND AND WIFE.

A contract conditioned for the payment of money given by a husband to his wife on entering into the marriage relation, binding him to treat her as a husband should, is not without consideration, because it bound the husband to do no more than the law already bound him to do, and would tend to an estrangement between the husband and wife for pecuniary gain, where the contract was conditioned on the wife's own good conduct.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by Martha A. Montgomery against J. P. Montgomery and others. Judgment for defendants, and plaintiff appeals. Reversed and cause remanded.

A. W. Curry, for appellant. I. W. Mayfield, James T. Moore, and L. G. Mayfield, for respondents.

COX, J.

Plaintiff filed the following petition (omitting caption): "Now, on this day, comes the said Martha A. Montgomery, plaintiff, and, for her cause of action against the defendants, J. P. Montgomery, P. M. Montgomery, and Margaret E. Montgomery, respectfully states to the court that on or about November, 1907, she was duly married in Laclede county, Mo., to John P. Montgomery, and that defendant John P. Montgomery is the husband of this plaintiff; that after the marriage of the plaintiff and defendant John P. Montgomery there was born of said marriage one child, now living, of tender years, to wit, 18 months, and that after the marriage aforesaid the said defendant John P. Montgomery refused to live with the plaintiff, his wife, and willfully and without cause deserted and abandoned her and her infant child; that he has wholly failed to support them and furnish any means of existence either to the plaintiff or to his child; that he has failed to perform his duties as a husband to the plaintiff, in that he has abandoned and willfully failed and neglected totally to support the plaintiff and their infant child, and in that respect has maltreated and abused the plaintiff; that he has not treated her in a good and proper manner as a husband should treat his wife, in that he has failed and neglected to live with her and support and maintain her and perform his duties towards her as a good husband should do. Plaintiff further states that prior to their marriage, and about the time of their marriage in November, 1907, the plaintiff and defendants John P. Montgomery, P. M. Montgomery, and Margaret E. Montgomery entered into a certain contract and stipulation, which said contract is herewith filed as a part of this petition; that by the terms of the said contract the said John P. Montgomery agreed to marry Martha A. Montgomery, then Martha A. McFall, bind himself and the other defendants P. M. Montgomery and Margaret E. Montgomery, as his sureties, in the sum of $500, to the effect that he should treat her, Martha A. McFall, in a good and proper manner as a husband should treat his wife, and would not maltreat nor abuse her, and, if he failed to treat her as above stated, then such obligation should become due and payable upon himself and his bondsmen, provided the said Martha A. McFall should conduct herself in a proper manner in every respect as a wife to the said John P. Montgomery, which was duly executed by the said defendants. And plaintiff further states that soon after the execution of the said contract the plaintiff and defendant John P. Montgomery were married, and that since that marriage Martha A. McFall, thereafter Martha A. Montgomery, did conduct herself in a proper manner in every respect as the wife of the said defendant John P. Montgomery, but that the said John P. Montgomery, in total disregard of the duties as a husband of the said plaintiff was guilty of gross and improper conduct, as hereinafter set forth, in direct violation of his duties and his contract aforesaid; that, by reason of the said neglect and refusal of the said John P. Montgomery to perform the obligations of his contract and his obligation as a husband to this plaintiff, an action is proven upon the said contract, and the plaintiff is entitled to the full sum of $500, as provided in said contract; that the plaintiff has been at great inconvenience and expense to support herself and her child; that she has been a charge upon her friends; also that she has suffered great indignities by reason of the desertion of her said husband and suffered great mental anguish by reason of his conduct as herein set forth. Wherefore, plaintiff prays for the sum of five hundred ($500) dollars damages and for costs of suit. J. P. Nixon, Plaintiff's Attorney."

The contract sued upon which was filed with the petition is as follows: "Know all men by these presents that, I, John P. Montgomery, having agreed and married Martha A. McFall, bind myself and also the following securities, to-wit: P. M. Montgomery and Margaret E. Montgomery, in the sum of five hundred ($500.00) dollars, to the effect that I will treat her, Martha A. McFall, in a good and proper manner as a husband should treat his wife, and will not maltreat nor abuse her in any manner, and if I should fail to treat her as above stated, then this obligation shall become due and payable upon myself and bondsmen, provided that the said Martha A. McFall shall conduct herself in a proper manner in every respect as the wife of the said John P. Montgomery. John P. Montgomery. [Seal.] P. M. Montgomery. [Seal....