Wingerd v. Foley

• Decision Date: 11 July 1942
• Docket Number: 35520.
• Citation: 155 Kan. 566,127 P.2d 524
• Parties: WINGERD v. FOLEY.
• Court: Kansas Supreme Court

127 P.2d 524

155 Kan. 566

WINGERD v. FOLEY.

No. 35520.

Supreme Court of Kansas

July 11, 1942

Rehearing Denied Sept. 14, 1942.

Syllabus by the Court.

Where one in good faith asserts a claim not obviously invalid worthless or frivolous and which might be thought to be reasonably doubtful, the forbearance to prosecute such a claim will furnish a sufficient "consideration" for a promise of settlement and compromise of the claim.

Plaintiff's agreement to release cause of action for defendant's alleged criminal conversation with plaintiff's wife constitutes sufficient legal "consideration" to support the contract of defendant to pay damages.

The invasion of husband's conjugal rights will support a cause of action for damages and a monetary settlement of such action is legally enforceable.

Where preliminary oral agreement was made to settle husband's cause of action for criminal conversation but terms of oral agreement and consideration were never defined and agreement was never consummated, the agreement did not constitute a binding "compromise and settlement" or an "account stated" and did not preclude recovery on subsequently executed written contract of settlement for a greater sum.

Where defendant entered into written contract to pay damages for criminal conversation with plaintiff's wife defendant's subsequently repeated solicitations to plaintiff to reduce amount of damages constituted "ratification" of the contract against defendant's plea that he signed the written contract under coercion and duress.

In an action on a written contract for money which defendant agreed to pay as damages for criminal conversation with plaintiff's wife, the record examined, and held: 1. There was sufficient legal consideration to support the contract. 2. The invasion of a husband's conjugal rights will support a cause of action for damages, and a monetary settlement of such a cause of action is legally enforceable. 3. A preliminary oral agreement to settle plaintiff's grievance against defendant for a stipulated sum of money but the terms of which and the consideration for which were never defined, which agreement was never consummated, did not constitute a binding compromise and settlement nor an account stated, nor did it constitute a defense to the written contract sued on. 4. The circumstances surrounding the making of the written contract, and its later ratification by defendant in making a substantial payment thereon in one week after it was executed, and his subsequently repeated solicitations to plaintiff to reduce the amount of the written contract, were sufficient to constitute ratification of the contract against defendant's plea that he signed the written contract under coercion and duress.

Appeal from District Court, Kingman County; Clark A. Wallace, Judge.

Suit on a written contract by Jacob F. Wingerd against Arthur Foley. Judgment for plaintiff, and defendant appeals and the plaintiff cross-appeals.

George K. Melvin, of Lawrence (H. E. Walter, of Kingman, and John E Boyer, of Wichita, on the brief), for appellant and cross-appellee.

Charles C. Calkin, of Kingman (James Conley, of Wichita, on the brief), for appellee and cross-appellant.

DAWSON Chief Justice.

This was an action on a written contract wherein defendant bound himself to pay to plaintiff the sum of $3,000 to settle a claim for civil damages for the seduction of plaintiff's wife.

The contract was executed on August 13, 1940. In its terms it was recited that--

"Whereas, party of the first part [plaintiff] has a cause of action against party of the second part [defendant], growing out of certain circumstances with reference to party of the first part's wife, and family, including sexual relations and affections of the wife of party of the first part, and the alienations thereof by party of the second part, and,

"Whereas, the parties hereto have mutually agreed each with the other, to enter into a fair and amicable settlement of their differences, and party of the first part has agreed not to commence suit in said cause of action as against party of the second part."

In consideration of the foregoing and subsequent recitals the parties agreed and stipulated that--"Party of the first part agrees that he will not file in any court in this state or elsewhere any cause of action as against party of the second part, for the alienation of the affections of the wife of party of the first part, and in consideration therefor, and for other good and valuable considerations, party of the second part agrees to pay to party of the first part, the total sum of Three Thousand Dollars ($3,000) ***."

The agreed amount was to be paid thus: $500 in cash, the receipt of which was acknowledged, and $2,500 on or before November 15, 1940, without interest if paid when due, otherwise to draw interest at 10% per annum.

The contract finally stipulated--

"That said parties do hereby release and discharge any and all debts, causes of action, claims, or damages, as each may have as against the other and this contract shall constitute a full, final and complete settlement of any and all their disputes.

*****

"(Signed) Jacob F. Wingerd

"Arthur Foley"

Defendant made default in the payment of the $2500 balance due on the contract, and this action followed.

Plaintiff's petition alleged the pertinent facts and set up the written contract.

Defendant's answer contained a demurrer to the sufficiency of plaintiff's petition, likewise a general denial, and then pleaded in substance as follows: That defendant signed the contract sued on, and paid $500 on the date thereof, but there was no legal consideration for the contract; that plaintiff and plaintiff's wife and counsel employed by them entered into a fraudulent conspiracy to extract money from defendant, and that plaintiff made an agreement with his counsel to pay to the latter one-third of any amount which might be extracted from defendant; that in furtherance of such conspiracy--

"Plaintiff and said counsel misrepresented to defendant many matters of fact and law and threatened defendant with civil action, exposure, public ridicule and disgrace. That *** being influenced by the threats and duress used by said plaintiff and said counsel, this defendant signed said contract not of his own voluntary will and accord, but solely because of said misrepresentations, threats and duress, ***. That the wife of said plaintiff was a party to said conspiracy *** that plaintiff, a short time prior to the signing of said written agreement sued on herein, accused him of improper associations with plaintiff's wife and so accused him in the presence of defendant's wife, and *** threatened defendant and insisted upon a settlement of the damages which plaintiff claimed to have sustained by reason of the indiscretions with plaintiff's wife with which plaintiff accused defendant.

"That for the purpose of avoiding publicity and buying their peace and quiet, and for the purpose of settling with plaintiff for all wrongs committed by defendant, imaginary or otherwise, defendant and defendant's wife solemnly agreed with plaintiff that each, any and all claims which plaintiff might have against defendant because of any transactions or relationships between defendant and plaintiff's wife should be forever settled by the payment to plaintiff of the sum and amount of $400 cash. That a full and complete accord and satisfaction as to the damages claimed by plaintiff to be due from defendant because of association of defendant with plaintiff's wife was had, ***."

Defendant's answer further alleged that on the day following the foregoing agreement plaintiff and defendant went to Kingman (at some distance from Lansdown where the parties resided) to carry their agreement into effect, and that they went to the office of plaintiff's counsel, and after a private conference between plaintiff and his counsel, the latter told defendant that the agreed amount would not be accepted, and that defendant then signed the agreement for the larger amount under the circumstances above.

Defendant concluded his answer with a prayer that plaintiff take nothing by his alleged cause of action, and in a cross petition defendant prayed for the return of the $500 plaintiff had wrongfully obtained from him as shown above.

Plaintiff's reply contained a demurrer, a general denial, and a plea of ratification which in substance alleged that although the contract sued on recited that the $500 was paid in cash, yet it was in fact paid by a bank check which defendant requested plaintiff not to present for payment until he could procure sufficient funds to meet it, and that plaintiff complied with that request, and that defendant had ample time and full opportunity--"To consider all of the facts and circumstances involved, and the results and effect of said contract, [and] did make arrangements for said funds and did pay check, and did thereafter make no objection to said contract of the nature and character set forth in his answer herein, ***."

Plaintiff's reply further alleged that not long after the contract was made defendant began to urge the plaintiff to accept a less amount than the contract stipulated "to avoid bringing an action thereon and thereby subjecting plaintiff and plaintiff's wife to the disadvantage of bringing and maintaining an action on said contract, and suffering the humiliation and embarrassment that would result therefrom and *** said defendant should not now be permitted to change his position and assert, as his reasons for refusing to perform said contract, matters wholly inconsistent with the reasons...