Robertson v. Robertson

• Decision Date: 23 April 1919
• Docket Number: 2335
• Parties: ROBERTSON v. ROBERTSON
• Court: Nevada Supreme Court

180 P. 122

43 Nev. 50

ROBERTSON v. ROBERTSON

No. 2335

Supreme Court of Nevada

April 23, 1919

H. R Cooke, of Tonopah, for appellant.

F. K Pittman and M. M. Detch, both of Tonopah, for respondent.

Plaintiff wife, defendant in divorce suit, by filing motion in divorce proceeding to set aside divorce decree in favor of her husband, together with answer to the merits specifically asking for attorney's fees and other money, violated contract whereby she agreed not to demand a division of community property, or ask for suit money in consideration of husband's promise to pay her a specified sum in settlement of community property rights.

Where plaintiff wife, defendant in divorce suit, instead of bringing action for husband's breach of contract whereby he agreed to pay her a specified sum in consideration of her agreement not to demand a division of community property, or ask for suit money, instituted proceedings to set aside divorce decree in his favor, held, she cannot maintain suit on the contract; the remedies being inconsistent, and she having made an election.

Appeal from District Court, Nye County; Mark R. Averill, Judge.

Action by Arna Fecht Robertson against James Cuthbert Robertson. Judgment for defendant, and plaintiff appeals. Affirmed.

H. R Cooke, of Tonopah, for appellant.

F. K Pittman and M. M. Detch, both of Tonopah, for respondent.

DUCKER J.

This is an action for the breach of a contract. The respondent and appellant were husband and wife, and during the pendency of an action for divorce instituted by the husband entered into a written contract whereby the appellant agreed that in the event a divorce was granted to plaintiff she would not pray, ask, or request in said action for divorce the court to award or allow her any alimony, maintenance, or support of any kind, character, or description, temporary, permanent, or otherwise, from or against said plaintiff nor any award or allowance for costs in said action nor any allowance or award for attorney's fees therein. It is further mutually agreed between them for the purpose of for all time settling and disposing of their property rights that re-DPspondent should pay the appellant the sum of $3,000 in the following manner: The sum of $50 on the 6th day of July, 1915; the sum of $50 on the 6th day of August, 1915; and the sum of $50 on the 6th day of every month commencing on the 6th day of September, 1915, until the whole of said sum of $3,000 is paid. It is also agreed that, if respondent make default in any of the monthly payments as the same become due and continue in default for the period of 30 days, then in that event the whole of said sum of $3,000 or so much thereof as remains unpaid shall immediately become due and payable and subject to an action by the appellant for the collection thereof; the respondent waiving all defenses to such action other than the defense of full payment. In consideration of the said promises on the part of respondent and the faithful performance thereof, appellant agrees to make no demand for any property of the parties. There is also an agreement in the contract that payments shall cease upon the event of the remarriage of wife.

The contract was executed by the parties on the 30th day of August, 1915, and payment of the sum of $100 for the months of July and August, 1915, is acknowledged in the contract by the wife. In the complaint it is alleged that-

"No portion of the $3,000 specified in said written agreement to be paid by the defendant herein to the plaintiff, in the manner and at the times as in said agreement provided, has been paid by, for, or on behalf of said defendant, save and except the sum of $100, receipt of which is acknowledged in and by said agreement, and an additional $75 subsequently paid in full of the $50 payment by the terms of said agreement due and payable on September 6, 1915, and $25 on account of the $50 payment due and payable by the terms of said agreement on October 6, 1915, leaving a balance due, wholly unpaid, and owing from said defendant to plaintiff in the sum of $2,825, with interest on said sum from November 6, 1915, until paid, at the legal rate of 7 per cent. per annum."

The defense is based on the grounds that the payments alleged to be due and unpaid were in writing waived and deferred until such time as the plaintiff should make a demand upon the defendant for payment of the same or until the defendant should voluntarily resume the making of such payments, and that, before such demand or resumption of payments was made, the plaintiff breached her contract. As to the breach of her contract claimed by defendant, it is alleged in his amended answer that on the 28th day of February, 1916, she caused to be filed in the district court in the divorce proceeding her motion to set aside the decree of divorce granted to her husband, together with an affidavit and verified answer wherein she seeks to set up a defense in the divorce proceeding, and whereby she asks for an order of the court directing the plaintiff therein to pay attorney fees, traveling expenses, maintenance during the pendency of the action and alimony pendente lite, wherein she seeks a division of certain community property; that said proceedings are still pending and undetermined in the court; that in the preparation of the defense in the hearing of said motion the plaintiff therein was compelled to and did employ counsel and expend certain sums of money, and has been ready at all times to be present to have said motion heard and determined.

The case was tried in the district court without a jury, and judgment rendered for the respondent.

Appellant appeals from the judgment and the order of the district court overruling her motion for a new trial.

A number of errors are...