Moore v. Crutchfield

• Decision Date: 15 March 1923
• Parties: MOORE . v. CRUTCHFIELD.
• Court: Virginia Supreme Court

116 S.E. 482

MOORE .

v.CRUTCHFIELD.

Supreme Court of Appeals of Virginia.

March 15, 1923.

[Ed. Note.—For other definitions, see Words and Phrases, Second Series, Decree for Alimony.]

Error to Law and Equity Court of City of Richmond.

Action by Edna E. Crutchfield, administratrix of Mary Crutchfield Moore, deceased, against Warner Moore, Jr. Judgment for plaintiff, and defendant brings error. Affirmed.

S. S. P. Patteson and H. M. Smith, Jr., both of Richmond, for plaintiff in error.

Gunn & Mathews, of Richmond, for defendant in error.

WEST, J. Warner Moore, Jr., complains of a judgment rendered against him on February 12, 1921, in favor of Edna E. Crutchfield, administratrix of Mary Crutchfield Moore, deceased, for the sum of $5,070, with interest thereon from the 20th day of November, 1920, till paid.

The admitted facts are these:

On October 6, 1917, Warner Moore, Jr., and Mary Crutchfield, of Richmond, Va., were married in the city of Washington, D. C. Moore, at the time of the marriage, was a student in the Officers' Training Camp at Ft. Myer, Va., where he afterwards received a commission in the army of the United States, and was assigned to duty with the flying corps in France. On October 28, 1917, Moore sailed for France, and never thereafter resumed his marital relations or contributed to the support of his wife, until after she brought suit against him for a divorce on the ground of desertion. In her bill of complaint she prayed for a divorce a mensa et thoro, and at the end of three years a divorce from the bonds of matrimony. On her motion for alimony and counsel fees pendente lite, the court, on April 11, 1919, decreed that Warner Moore, Jr., should pay to her counsel, Gunn & Mathews, on account of their fee, $250, and to the complainant—

"the sum of $450, representing $25 per month from November, 1917, to April, 1919. inclusive, the desertion being alleged to have commenced in November, 1917, and the said defendant to pay unto the said plaintiff the sum of $25 per month, quarterly, beginning on the 1st of July, 1919, and continuing until the further order of this court."

The defendant filed no answer to the bill of complaint, nor any evidence in the case, but complied with the terms of the decree aforesaid requiring him to pay alimony and suit money.

On October 22, 1919, the case was heard on the papers formerly read and the depositions of witnesses duly taken and returned to court, and a decree was entered granting the complainant a divorce from bed and board.

This decree also contained the following clause:

"And it appearing that all property interests and alimony have been fully settled and agreed upon between the plaintiff and defendant, as appears from an agreement filed herewith marked Exhibit 2, the court doth, in all respects, approve said settlement as to the said alimony and property rights of the respective parties hereto, provided, however, that the said defendant shall in addition thereto pay the costs of this suit, and the fee of $500 to Gunn & Mathews, counsel, for the plaintiff."

The agreement dated October 20, 1919, referred to in the said decree as "Exhibit 2, " reads as follows:

"The undersigned, Warner Moore. Jr., and his wife, Mary Crutchfield Moore, having ceased to live together as man and wife, without in any way acknowledging upon whom is the fault or condoning the conduct of the one or the other, which has led to the existing state of affairs, or preventing any consequences which may follow, or right which may arise to either party if such status shall continue, desire to settle the property rights of the parties hereto. With this view they have entered into the following agreement:

"First. In lieu of all claims for support and maintenance, which the said Mary Crutchfield Moore has, or might or could have, or for alimony, she agrees to accept in full settlement of all her property rights, by reason Of the said marriage, the sum of twenty-five ($25.00) dollars per month from November 1, 1917, continuing for a period of three years thereafter, and upon final adjudication of this cause the said Warner Moore, Jr., is to pay to her, or her counsel, the sum of five thousand ($5,000.00) dollars in cash."

Mary Crutchfield Moore died on the 25th day of January, 1920, while the divorce suit was still on the docket of the court. At her death the current amount of alimony due on the monthly payments of $25 was $70.42. After her death this suit was revived in the name of the said Edna E. Crutchfield, her administratrix, and the $70.42 aforesaid, was tendered to her.

She declined to receive it, and on April 2, 1920, filed her petition in the cause, and claimed that the real amount due was the sum of $5,000, provided for in the contract heretofore referred to as "Exhibit 2, " and not S70.42. Moore filed an answer to said petition, in which he contended that he only owed the $70.42 and the costs of the suit, as the agreement, marked "Exhibit 2, " except to this extent, was made null and void by the death of said Mary Crutchfield Moore, and was now impossible to be performed..The case made by the petition and answer was argued and submitted, and dismissed by the court for the want of jurisdiction.

Thereupon the administratrix instituted this action at law against the defendant, Warner Moore, Jr., for $5,300, with interest from November 1, 1920, till paid, claimed to be due under the agreement of October 20, 1919, aforesaid. The case was heard by the court without a jury. The evidence in the divorce suit was submitted as evidence in the common-law suit along with some other evidence, and the court entered a judgment against Moore for the sum of $5,070, with interest from November 20, 1920, till paid.

The plaintiff in error relies on two assignments of error. He contends, first, that the court erred in holding that there was a binding agreement which made him liable for $5,000 on the personal contract of Mary Crutchfield Moore, which had become impossible of performance by reason of her death, she being the only person who could perform the same, and in entering judgment against him therefor.

He contends, second, that the court erred in holding that such a contract survived to the personal representative of Mary Crutchfield Moore.

These two assignments will be considered together.

The validity of contracts for the payment of alimony, as such, made by the parties during the pendency of a divorce suit has been often questioned. But a contract for the payment of a certain sum of money in lieu of alimony was sustained by this court in Newman v. McComb, 112 Va. 408, 71 S. E. 624.

The plaintiff in error admits in his petition that this action is based on a valid contract in relation to alimony, but contends that it has become...