Schwerdt v. Schwerdt , 141 Ill. App. 386 ( 1908 )

Mr. Justice Thompson

delivered the opinion of the court.

The appellant assigns for error that the court erred in sustaining the demurrer to the declaration. The suit is brought on an agreement in writing which is set forth in the body of the declaration. It is alleged that the agreement was for a valuable consideration, in that there was a mutual agreement that the defendant should take out a policy of life insurance on the life of the wife of plaintiff, she being the mother of the defendant, in the sum of five thousand dollars, which insurance when collected should be used toward the support of the plaintiff during the remainder of his life, and that the insurance had been collected. It is insisted on the part of both the parties to this controversy that a son has no insurable interest in the life of a parent. Guardian M. L. Ins. Co. v. Hogan, 80 Ill. 35; Guaranty E. L. Society v. Dyon, 79 Ill. App. 100. The policy was not taken out by either the plaintiff or his wife, but by the defendant. No right accrued to the defendant, and no detriment, forbearance, labor or service was suffered or performed by either the plaintiff or his wife. There was no mutuality in the agreement and hence no consideration for it. It is a nudum pactum and cannot be enforced. A promise founded upon considerations of affection or gratitude is a beneficence and cannot be the foundation for a legal action. Kirkpatrick v. Taylor, 43 Ill. 207; Williams v. Forbes, 114 Ill. 167. The payment of the -policy was a question between the insurance company and the defendant with which the plaintiff had no concern. Johnson v. Van Epps, 110 Ill. 551.

It is also argued by appellant that the declaration is good because the statute of Illinois imposes upon a son who is of sufficient ability the duty of supporting indigent parents. The declaration is not drawn upon that theory but is based entirely upon a nudum pactum. A declaration consisting of a single count based upon a contract in writing and upon an independent statutory duty would be double. At the common law-there is no obligation which imposes upon a child’the legal duty of maintaining an infirm, aged and destitute parent. People v. Hill, 163 Ill. 189. Under the statute requiring children to support their infirm and indigent parents a right of action does not accrue to the parent himself to enforce the act. The purpose of the act is to indemnify the public against the maintenance of paupers, and the only remedy given is in favor of the county for the use of the poor of the county. Mercer v. Jackson, 54 Ill. 397.

It is insisted that the defense of no consideration cannot be raised by a demurrer but that it must be raised by a special plea. In the absence-of. statutory enactments to the contrary, it is necessary in actions upon contracts to allege a consideration, except in the case of contracts under seal, bills of exchange and negotiable promissory notes, all of which by intendment of law import a consideration, and a failure to state a consideration or a statement of an insufficient consideration may be taken advantage of by demurrer. 4 Ency. of Pl. & Pr. 928; 1 Chitty on Pl. 300; Stephens on Pl., 96; Hulme v. Renwick, 16 Ill. 371; Hite v. Wells, 17 Ill. 88. Appellant particularly set forth, what he claimed was the consideration, and from the allegation it clearly appears there was no consideration for the agreement. The demurrer was properly sustained, and the judgment is therefore affirmed.

-Affirmed.