Musick v. Dodson

• Decision Date: 31 October 1882
• Parties: MUSICK, Appellant, v. DODSON.
• Court: Missouri Supreme Court

76 Mo. 624

MUSICK, Appellant,

v.DODSON.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Adair Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

Millan & Musick for appellant.

H. D. Risdon for respondent.

SHERWOOD, J.

Action before a justice of the peace, based on the following statement:

“Plaintiff states that he is an attorney at law, duly licensed according to law; that heretofore, to-wit: on the -- day of _____, 1877, one Louisa Allen employed plaintiff to bring and prosecute an action for divorce from her then husband, James Allen; that the cause of said divorce was that she had been deserted by her husband for more than three years before the bringing the suit for divorce or contracting with plaintiff to bring said suit for divorce, and that plaintiff did bring said suit, and did successfully prosecute the same, and she was divorced from her said husband; that plaintiff's services therein were reasonably worth $20, which amount she agreed to pay plaintiff, before and after the divorce was granted, but which is due and unpaid, that, afterwards, on the -- day of _____, 1878, defendant Thomas Dodson, was duly and legally married to Louisa Allen, and is now her husband. Wherefore plaintiff prays judgment against said Thomas Dodson for said sum of $20 and costs.”

1. MARRIED WOMAN'S PROMISE TO PAY ATTORNEY'S FEE FOR DIVORCE.

A married woman is wholly incapable of making any contract whatsoever, which will bind her personally, or create against her a personal debt or obligation. Bauer v. Bauer, 40 Mo. 61; Higgins v. Peltzer, 49 Mo. 152. And it has been expressly decided, that a married woman's promise to pay an attorney his fee for obtaining a divorce for her, would not be binding upon her. Whipple v. Giles, 55 N. H. 139; s. c., 2 Cent. L. Jour. 484. This being the case, the engagement made with the plaintiff by Mrs. Dodson, now wife of defendant, then wife of James Allen, to pay plaintiff, as an attorney, a certain sum for obtaining a divorce for her from Allen, cannot be regarded as a debt of the wife of Allen, and if not a personal debt of hers, then according to plaintiff's own position, the defendant could not be held legally liable for anything less than the debt of his wife, contracted anterior to his marriage with her. And if Mrs. Allen could not, during the existence of marital relations with her then husband, bind herself personally, then as a matter of course there could not be any consideration for the promise made by Mrs. Allen, after the divorce was obtained, to pay for such services, so the subsequent promise would be a mere nudum pactum and of no binding, obligatory or debt-creating force.

2. MARRIED WOMAN'S PROMISE: affirmation when discovert.

The case of Wilson v. Burr, 25 Wend. 386, gives support to plaintiff's position that a moral obligation on the part of a femme covert, is sufficient to uphold her promise, made after the removal of her disability. That case is based on Lee v. Muggeridge, 5 Taunt. 36, which Mr. Parsons says, “is not law.” 1 Parsons Cont., 435. It was subsequently abridged and modified in Littlefield v. Shee, 2 B. & Ad. 811, and denied in Eastwood v. Kenyon, 11 Ad. & El. 438, Denman, C. J. It is said by Mr. Story that where contracts are “merely voidable, and not void in their inception, they may be revived by a subsequent promise, provided they were originally founded upon an express or implied request by the party benefited. But where the promise is void ab initio, it is not capable of ratification. Thus, where a married woman gave a promissory note, and after her husband's death, promised, in consideration of the forbearance of the payee, to pay it, it was held that the note was absolutely void, and that forbearance where there was no cause of action originally, is not a sufficient consideration to raise a promise. * * So also, where certain goods were supplied to a femme covert, living apart from her husband, and for which she, after his death, promised to pay, it was held that the subsequent promise was void, because the goods being supplied to her during the life of her husband, the price constituted a debt due from him and not from her.” 1 Story Const., § 593, and cases cited. Mr. Baron Parke said “A mere moral consideration is nothing.” Jennings v. Brown, 9 M. & W. 501. Chancellor Kent says that the weight of authority is opposed to the view that a mere moral obligation is of itself, a sufficient consideration for a promise except in those cases in which a prior legal obligation or consideration had once existed. 2 Kent, 465.

The doctrine of the case of Wilson v. Burr, supra, was departed from in the subsequent cases of Watkins v. Halstead, 2 Sandf. 511; Smith v. Allen, 1 Lansing 101, and Geer v. Archer, 2 Barb. 424, where that doctrine is repudiated. And before that case was adjudicated a different view of the law had been taken in Ehle v. Judson, 24 Wend. 97, and Smith v. Ware, 13 Johns. 257, which cases were not noticed in that on which plaintiff relies. The views we have expressed touching the point in hand are also supported by Mills v. Wyman, 3 Pick. 207, where the subject of the insufficiency of a mere moral obligation as the basis for a subsequent promise, is very clearly and elaborately discussed, and also by numerous other cases cited in the text-books from which we have quoted.

In Greenabaum v. Elliott, 60 Mo. 25, Wagner, J., delivering the opinion of the court said: “A moral obligation by itself is not a good consideration for a promise. To impart to it any binding character, there must be some antecedent legal liability to which it can attach. Parsons says the rule may now be settled as follows: ‘A moral obligation to pay money or to perform a duty, is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was enforceable at law before the interference of some rule of law. Thus, a promise to pay a debt contracted during infancy, or barred by the statute of limitations or bankruptcy, is good without other consideration than the previous legal obligation. But the morality of the promise, however certain or however urgent the duty, does not of itself suffice for a...