Town of Hamden v. Merwin

• Decision Date: 28 June 1886
• Citation: 8 A. 670,54 Conn. 418
• Parties: TOWN OF HAMDEN v. MERWIN.
• Court: Connecticut Supreme Court

8 A. 670

54 Conn. 418

TOWN OF HAMDEN

v. MERWIN.

Supreme Court of Errors of Connecticut.

June 28, 1886.

Case reserved from court of common pleas, New Haven county.

Action on contract under seal. Demurrer to complaint.

W. H. Ely, in support of demurrer.

J. W. Alling and J. H. Webb, contra.

PARK, C. J. The case stands on a demurrer to the complaint, the declaratory part of which is as follows:

(1) On December 7, 1883, the defendant, in consideration of the agreements on the part of the plaintiff therein contained, executed and delivered under seal a contract with the plaintiff, of which the following is a copy:

"Know all men by these presents, that I, Nathan P. Merwin, of the town of Woodbridge, in the county of New Haven, in consideration that neither the town of Hamden, in said county, nor the parents of Jennie L. Downs, of said Hamden, do institute any legal proceedings against me of any kind or nature on account of the said Jennie L. Downs being pregnant with an illegitimate child, or for the support of said illegitimate child, or for the support or nursing of the said Jennie L. Downs during her confinement, do hereby covenant and agree to and with the said town of Hamden, and with the selectmen thereof, that said child of said Jennie L. Downs shall not be or become a charge or expense to said town of Hamden, nor to the selectmen thereof, during such time as, under the statute laws of this state, the person accused of begetting such child would be liable for the support of such child, and only to an amount not exceeding the amount to which, under said statute laws, the person accused of begetting such child would be liable: and provided, that neither said town, nor the selectmen thereof, shall furnish any money or supplies to said Jennie L. Downs, nor to said illegitimate child when born, nor take any legal proceedings for the support of said child or the mother thereof, without giving me notice in writing one week prior thereto of the intention to do so: and provided, that neither said town of Hamden, nor the said Jennie L. Downs, nor the parents of said Jennie, shall institute any legal proceedings for either the support of said child, or for causing the pregnancy of said Jennie L. Downs, with the consent of said town. In witness whereof I have hereunto set my hand and seal this seventh day of December, A. D. 1883.

"NATHAN P. MERWIN." [L. S.]

(2) On December 6, 1883, the illegitimate child referred to in said contract was born to the said Jennie L. Downs.

(3) Said Jennie, at the time of the birth of said child, had a legal settlement in said town of Hamden.

(4) On or about January 1, 1885, said illegitimate child became in need of care and support, and the mother thereof (the said Jennie) applied to said selectmen for assistance in the care and support of said child.

(5) On January 14, 1885, said selectmen gave notice in writing to the defendant that said illegitimate child was in need of care and support, and about to become a charge and expense to said town of Hamden, and that, unless sooner relieved and cared for by the defendant, said selectmen would, on January 21, 1885, begin to incur charges and expense in the necessary care and maintenance of said child, for which said town of Hamden would hold the defendant responsible pursuant to said contract.

(6) The defendant neglected and refused to do anything for the care and support of said child.

(7) On January 21, 1885, the plaintiff began to incur expense in the necessary care and support of said child, and continued to incur such expense until the death of said child, on or about July 19, 1885, when the plaintiff was further obliged to pay, and did pay, the necessary expenses of its proper burial.

(8) The total expense thus incurred by the plaintiff was $103.21.

(9) The defendant has neglected and refused to pay the same, or any part thereof.

(10) The plaintiff has duly kept and performed all the conditions of said contract on its part.

The plaintiff claims $125 damages.

The plaintiff afterwards amended the complaint as follows: The plaintiff amends the complaint by substituting for paragraph 7 the following:

(7) On January 21, 1885, said illegitimate child was, and for more than one month prior thereto had been, and continued thereafter until its death to be, a poor inhabitant, having a legal settlement in said town of Hamden, and not having estate sufficient for its support, and having no relations of sufficient ability who were obliged by law to support it, and the mother of said child being unable to contribute anything for its support, the plaintiff on said lastmentioned day began to incur expense in the necessary maintenance and support of said child, and continued to incur such necessary expense, and furnish such necessary support, until the death of such child, on or about July 19, 1885, when, because of the inability of the mother of said child, or any of its relatives who were obliged by law to support it, to defray the expense of the burial, the plaintiff was further obliged to pay, and did pay, the necessary expenses of its proper burial.

(7) That the period during which said support and maintenance were so furnished by the plaintiff to said pauper child was within the time during which, under the statute laws of this state, the person accused and found guilty of begetting an illegitimate child would, at the suit of a town, be liable for the support of such illegitimate child, and did not exceed the amount to which under said statute laws such person so found guilty would be liable to said town.

The plaintiff further amended the complaint by adding thereto the following paragraph:

(11) Neither the plaintiff, nor the parents of said Jennie L. Downs, nor the said Jennie, either with or without the consent of the plaintiff, have ever instituted any legal proceedings against the defendant of any kind or nature on account of said Jennie being pregnant with an illegitimate child, or for causing said pregnancy, or for the support of said illegitimate child, or for the support or nursing of the said Jennie during her confinement.

The defendant demurred to the entire complaint as amended, stating the following grounds of demurrer:

(1) The matters and allegations therein contained are insufficient in the law to entitle the plaintiff to the relief sought.

(2) The said pretended agreement in writing set forth in the complaint is void for uncertainty, and because it is impossible to ascertain, from the terms of said pretended agreement, what amount the defendant should pay the plaintiff under the same, and during what time...