Wallace v. Wallace
| Decision Date | 29 February 1940 |
| Docket Number | No. 27987.,27987. |
| Citation | 7 S.E.2d 604 |
| Parties | WALLACE. v. WALLACE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An agreement by a husband to pay his wife a specified sum bimonthly for her support and maintenance while she is living apart from him and during the pendency of a suit for divorce is valid. Where the husband, without cause, breaches such agreement, a recovery by the wife against the husband for the aggregate of the arrearage in the payments is authorized.
Error from Municipal Court of Savannah; B. B. Heery, Emanuel Lewis and Columbus E. Alexander, Judges.
Suit by Mrs. Bessie Wallace against R. E. Wallace, to recover back alimony. To review a judgment for plaintiff, defendant brings error.
Affirmed.
Aaron Kravitch and Charles E. Donnelly, both of Savannah, for plaintiff in error.
Oliver & Oliver, of Savannah, for defendant in error.
Mrs. Bessie Wallace instituted suit in the Municipal Court of Savannah against R. E. Wallace to recover $112 alleged to be due the plaintiff as back alimony, under an agreement between the plaintiff and the defendant whereby the defendant agreed to pay her $16 every two weeks as temporary alimony during the pendency of the defendant's divorce action against the plaintiff. The petition alleged that in addition to paying the plaintiff $16 every two weeks the defendant agreed to furnish her a house in which to live and to pay for various household expenses, such as water, electricity and telephone, and that the $16 every two weeks was to take care of the plaintiff's grocery bill. It was alleged that this agreement was entered into verbally, but was later reduced to writing by being incorporated in letters from the defendant's attorney to the plaintiff's attorney. The petition further alleged that the defendant continued these payments for a period of about ten months, after which he failed and refused to make any further payments. The plaintiff prayed for a recovery of $112, the aggregate amount of the payments in arrears.
The defendant demurred to the petition generally and specially. The special demurrer was on the grounds that the alleged agreement sued on does not constitute a valid contract, that the agreement shows on its face that it is an unilateral contract and was never accepted by the plaintiff, and also that the alleged agreement was not made by the defendant, or by any one authorized by him to make such an agreement. The court overruled the demurrer on each and every ground thereof. To this ruling the defendant filed exceptions pendente lite. The defendant answered, denying the allegations as to the agreement for temporary support of the plaintiff. Further answering the defendant alleged practically the same agreement as to temporary support for the plaintiff with the exception that he denied liability for alimony but on advice of counsel entered into the agreement sued on, that this agreement was only gratuitous on his part, the consideration for it being that his wife agreed to the prompt hearing of his divorce action, that the plaintiff failed in her part of the agreement by delaying the hearing of the divorce petition, and that for this reason the defendant ceased to furnish temporary support to the plaintiff, that the agreement was so breached by the plaintiff, and in fact was never accepted by her or by her attorneys. The case proceeded to trial before three judges acting as judge and jury, and a judgment was rendered in favor of the plaintiff for $112, the full amount sued for. The defendant made a motion for new trial on the general grounds only, which motion, after a hearing before the full bench, was overruled. To the judgments overruling the defendant's demurrers to the petition, and overruling the defendant's motion for new trial, the defendant excepted.
The defendant in his testimony admitted the execution of the contract alleged, but stated that it was a part of the contract that the plaintiff was to...
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