Montgomery v. Montgomery , 163 Mo. App. 99 ( 1912 )

COX, J.

This is the second appeal in this case. The first is reported in 142 Mo. App. 481, 127 S. W. 118. Plaintiff and defendant, John P. Montgomery, are husband and wife. At the time of their marriage they had a child two months old and just prior to their marriage John P. Montgomery as principal with the other defendants as sureties executed and delivered to plaintiff the following bond:

“Know All Men by These Presents: That I, John P. Montgomery, having agreed and married Martha A. McFall, I bond myself and also the following securities, to-wit, P. M. Montgomery, Margaret Montgomery in the snm of five hundred dollars ($500) to the effect that I will treat her, Martha A. McFall, in a good and proper manner as a husband should treat his wife and will not maltreat nor abuse her in any manner and if I should fail to treat her as above stated, then this obligation shall become due and payable upon myself and bondsmen provided that the said Martha A. McFall shall conduct herself in the proper manner in every respect as the wife of the said John P. Montgomery.”

After their mariage they went to live at the home of P. M. and Martha Montgomery, the father and mother of defendant John Montgomery. They remained here about ten days when defendant John Montgomery, plaintiff’s husband went to his grandfather’s, one-half mile away, ostensibly to work to earn money with which to build a house but in fact for the purpose of separating from his wife. Tbis suit followed and at the former trial defendant interposed a demurrer to the petition which was sustained upon the ground that the contract or bond above set out was void as against public policy. Plaintiff appealed and this court reversed the judgment and held that the contract or bond was a valid obligation and could be made the basis of a suit by plaintiff against the parties who executed it. Upon a retrial the plaintiff recovered judgment and defendant has appealed.

The trial was by jury and the instructions were fair to defendants. The only question left for our determination is whether the evidence will support the finding that there had been a breach of the bond. The condition of the bond was, “To the effect that I will treat her, Martha A. McFall in good and proper manner as a husband should treat his wife and will not maltreat no.r abuse her in any manner.” The evidence on the part of plaintiff tends to show that during the ten days plaintiff and her husband lived together, he was sullen and did not talk much to her. That on one occasion when a neighbor came in, their child was lying in the cradle crying when the neighbor said, “John, tend the kid” and he replied, “Damn the kid, damn a married man anyway.” On another occasion when ont hunting with some other young men, he engaged with them in jokes which impugned his wife’s virtue. The defendants offered in evidence .what they claimed was a release of the bond sued upon as follows: “Contract agreement between J. P. Montgomery and Martha A. Montgomery, his wife, to-wit: Both the above named parties have become dissatisfied and agree to separate by the said J. P. Montgomery paying' to the said Martha A. Montgomery twenty-five dollars and they further acknowledge that they both agree to the above contract, this 2nd day of December, 1907.

“J. P. Montgomery,

“Martha A. Montgomery.

“Acknowledged and subscribed to before me this the 2nd day of Dec., 1907.

“W. P- Moeeett, J. P.”

Plaintiff admitted signing this contract but said she did not understand its purport and was assured by her husband-that it was “only just to show that he wasn’t mad until he could build a house for us to go back together.” That he told her she could either stay at his father’s or her father’s until he got the house built. The evidence further disclosed that after they returned from the office of the justice of the peace, defendant left on the same day without saying anything to his wife or telling her when he would come back. That he went to his grandfather’s only one-half mile away and a few days thereafter when plaintiff learned that he did not intend-to live with her any more, she went to bim at his grandfather’s and asked him to return and live with her and he refused. Plaintiff then went to her father’s and on the same day her husband returned to his father’s and has not offered ■in any way to live with plaintiff since.

A recital of these facts is sufficient to convince any one that defendant, J. P. Montgomery had no intention of living with plaintiff as her husband and the execution of the supposed released before Esquire Moffett was the result of a deliberate attempt on the part of defendant J. P. Montgomery to get 'rid of his young wife and at the same time escape liability on his bond. We have no hesitancy in holding that the conduct of defendant was a breach of his bond and the judgment is therefore for the right party and should be affirmed. It is so ordered.

Gray, J., concurs. Nixon, P. J., not sitting.