Barnes v. Hobson , 1923 Tex. App. LEXIS 758 ( 1923 )

It conclusively appeared at the hearing in the trial court that Ella Hobson complied with the condition in the contract whereby T. W. Barnes agreed to will her a house and lot in Dallas worth $5,000 if she would not marry and be a good girl until she was 22 years of age, and that said T. W. Barnes failed to make any provision whatever for her in his last will. Therefore the judgment was not erroneous, so far as it established the claim for $5,000 asserted by Ella Hobson, unless the contract, because in restraint of marriage, was void within the rule of law applicable to contracts of that nature.

On the theory that the rule was that every contract in general restraint of marriage was void because against public policy, appellant insisted in the court below, and insists here, that the contract in question was invalid because, she asserts, the restraint it imposed on Ella Hobson was "general." Appellees do not controvert the correctness of appellant's statement of the rule, but they insist the contract was valid because, they assert, the restraint it imposed on Ella Hobson was not general, but was partial only and reasonable under the circumstances shown in the testimony.

There is no doubt the rule is as appellant states it. 1 Paige on Contracts, § 424; 2 Elliott on Contracts, § 753; 6 R.C.L. p. 768. The doubt is as to what constitutes "general restraint" within its meaning.

Unquestionably a contract which bound a competent person who had never married to never marry would be such restraint. And unquestionably, the restraint imposed by an agreement which bound such a person, as the one in question here did, not to marry until she was 22 years of age, was "general" in the sense that it forbade her marrying any person before she reached that age. But it was not "general" in the sense that it bound her never to marry. It left her at liberty to marry any person she chose to at any time after she became 22 years of age.

The question presented does not appear ever to have been before an appellate court in this state. The cases cited by appellant from other jurisdictions as supporting her contention are: Lowe v. Doremus, 84 N.J. Law, 658, 87 A. 459, 49 L.R.A. (N. S.) 632; McCoy v. Flynn, 169 Iowa 622,151 N.W. 465, L.R.A. 1915D, 1064; King v. King, 63 Ohio St. 363,59 N.E. 111, 52 L.R.A. 157, 81 Am. St. Rep. 635; Chalfant v. Payton,91 Ind. 202, 46 Am.Rep. 586; Sterling v. Sinnickson, 5 N.J. Law, 756; and Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216.

In the Doremus Case Mary Lowe sought a recovery against the executor of one Van Riper on a promissory note made by said Van Riper, by which he promised and authorized his executor to pay the plaintiff $3,000 30 days after his death. The consideration of the note was the undertaking of Mary Lowe to continue in Van Riper's employ and take care of him and not to marry until after his death. It was held that the contract "was in general restraint of marriage, and consequently void."

In the Flynn Case it appeared that Flynn and Miss McCoy had been betrothed, and that Flynn, having breached his agreement to marry her, paid her a sum of money June 17, 1909, and agreed to pay her $5,000 additional if she did not marry before July 1, 1912. It was held that the contract was void. After saying that "in order to obtain the $5,000 plaintiff was compelled to remain single for something more than three years, notwithstanding how many favorable opportunities she might have for a desirable marriage," the court added:

"It is hornbook law that contracts in restraint of marriage are illegal, and, as a rule, it makes no difference how long the restraint. Of course there are many exceptions to this rule. * * * In some cases it is held that, if the restraint be reasonable, it is not inimical to public policy; but there is nothing in the record showing any reason for the making of the stipulation, and no facts are pleaded, which would justify any such limitation upon the plaintiff's right in morals or in law to take upon herself the relations of a wife, notwithstanding the breach of promise on the part of Flynn. No benefit or advantage to him is shown, but, for reasons known only to him, he made his promise conditional on the fact that his former fiancee should not marry during the three years. The immediate tendency of this promise was to discourage marriage, and as a rule, that tendency stamps such contracts as illegal."

In the King Case it appeared that King had agreed with the plaintiff, a daughter of his niece, that "he would provide for her amply sufficient to make her comfortable and well off" if she "would refrain from marriage while he should live, and * * * would live with him and take care of him while he lived." The suit was against King's executor. It was held that the agreement was void so far as it bound the plaintiff not to marry, but the judgment in her favor was affirmed on the ground that that part of the agreement was but an incident to the main consideration to King for his undertaking, to wit, labor the plaintiff was to perform for and care she was to take of him.

In the Payton Case it appeared that persons doing business as a "marriage benefit association" contracted with a person to pay him $3,960 at the end of two years if he did not get married within that time, and if he married within the two years to pay him $5.50 for each day that he remained single after the date of the contract. It was held that the contract was contrary to public policy and void.

The Sinnickson Case is not reported in books we have had access to, but it appears from the opinion of the court in the Doremus Case and the opinion in the McCoy Case, both of which cite and discuss it, that it was a suit "on a sealed bill, the maker of which promised to pay $1,000 to the payee provided he (the payee) was not lawfully married in the course of six months from the date thereof." It was held that the agreement was void on the ground, it is stated in the Doremus Case, that it was in restraint of marriage and therefore against public policy.

The plaintiff in the Hooks Case sought to enforce against the estate of one Davis a verbal agreement the plaintiff's father entered into with Davis during the latter's lifetime, whereby the father contracted to surrender the custody and control of the plaintiff, then nine years old, to Davis, in consideration of the undertaking of Davis to rear and care for the plaintiff as a son, make him his heir, and leave him all of his property at his (Davis') death. It was held that the contract was against public policy and void. The case is cited by appellant, it seems, because of the statement in the opinion of the court that —

"Davis could not have enforced it (the contract) because based upon a void consideration. If Davis could not have enforced it against the plaintiff, it is not enforceable in the plaintiff's favor."

We do not see that the case is of any value in determining the question presented here as to the validity of the consideration for T. W. Barnes' undertaking. Had the consideration in the Hooks Case been a sufficient one, and had the father breached his undertaking under the contract during Davis' lifetime, we apprehend the court would have held that Davis could maintain an action for the breach.

The cases cited by appellees as supporting their view of the contract are: Hogan v. Curtin, 88 N.Y. 162, 42 Am.Rep. 244; Phillips v. Ferguson,85 Va. 509, 8 S.E. 241, 1 L.R.A. 837, 17 Am. St. Rep. 78; Knost v. Knost,229 Mo. 170, 129 S.W. 665, 49 L.R.A. (N. S.) 627; Lowe v. Doremus, 84 N.J. Law, 658, 87 A. 459, 49 L.R.A. (N. S.) 632, also cited by appellant as shown above; and Little v. Birdwell, 21 Tex. 610, 73 Am.Dec. 242.

In the Curtin Case the testator provided in his will that his daughter should have $16,000 at her majority or marriage before with the consent of her mother and his executors, and in case she married against such consent she was to have but $5,000. The daughter married before she reached her majority with the consent of the sole executor but without the consent of the mother. It was held that the marriage of the daughter without her mother's consent was a breach of the condition. In discussing the question the court said:

"A condition prohibiting marriage before twenty-one without consent, is by the common law valid and lawful. It is otherwise of conditions in general restraint of marriage, they being regarded as contrary to public policy, and the common weal and good order of society.' But reasonable conditions designed to prevent hasty or imprudent marriages, and to subject a child, or other object of the testator's bounty, to the just restraint of parents or friends during infancy, or other reasonable period, are upheld by the common law, not only because they are proper in themselves, but because by up-holding them the law protects the owner of the property in disposing of it under such lawful limitations and conditions as he may prescribe."

In the Ferguson Case it appeared that the testator had eight children. He directed $5,000 to be laid out in land to be divided among six of them. The residue of his property was to be divided among the eight children. He declared in the will that if either of his children should marry into the Phillips family the child so marrying should take only $3 of his estate. One of his daughters married into the Phillips family before the death of the testator. It was held that the daughter took only $3. In discussing a question presented as to the reasonableness of the condition in the will the court said:

"The law * * * recognizes as valid conditions in restraint of marriage which are just, fair and reasonable; and what is such a condition must, to a great extent, be determined upon the circumstances of each particular case."

In the Knost Case the testator devised to his daughter Anna an interest in his estate greater in value than that he devised to his other children, and then provided that in the event Anna married she should take only the interest his other children took in the estate. The proviso was held to be in general restraint of marriage and therefore void. The court said:

"The restraint on marriage was total. It was not leveled at marriage to a given person or to a communicant of a given church, or limited to a certain age or to a reasonable time. Any marriage whatever, however appropriate, at any time however reasonable to any person however suitable, took from Anna Marie Louisa a part of the estate vested in her by the will."

In the Birdwell Case the will provided that the testator's widow was to have his property "during her lifetime or widowhood." It is cited, it seems, only because the court quoted with apparent approval the following from 1 Story's Eq. Jur. § 280:

"Conditions, annexed to gifts, legacies, and devises, in restraint of marriage, are not void, if they are reasonable in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage. If the condition is in restraint of marriage generally, then, indeed, as a condition against public policy, and the due economy and morality of domestic life, it will be held utterly void. And so, if the condition is not in restraint of marriage generally, but still the prohibition is of so rigid a nature, or so tied up to particular circumstances, that the party upon whom it is to operate, is unreasonably restrained in the choice of marriage, it will fall under the like consideration."

In addition to the cases referred to by the parties, the following may be cited as pertinent to the question: Fletcher v. Osborn, 282 Ill. 143,118 N.E. 446, L.R.A. 1918C, 331; Crowder-Jones v. Sullivan, 9 Ont. L. 27, 4 Ann.Cas. 729; White v. Equitable Mutual Benefit Union, 76 Ala. 251, 52 Am.Rep. 325.

In the Osborn Case the undertaking of the intestate was to give property to Grant Fletcher if the latter would stay with him and render specified service and remain single during the lifetime of the intestate. It was held that the agreement to remain single was incidental to the undertaking to stay with and render the service to the testator, and therefore that the contract was not invalid because in restraint of marriage.

In the Sullivan Case a promissory note given by a widower to his housekeeper in consideration of her foregoing a proposed marriage and continuing in his service was held to be valid, on the ground that the restraint of marriage was merely an incident to the contract and not so unreasonable as to be contrary to the policy of the law.

In the White Case the certificate issued to the member of the association provided that —

"No member will be entitled to any benefit whatever, who marries in less time than three months from the date of his certificate."

The restraint imposed was held to be partial only, but the contract was held to be void because it did not further appear that it was reasonable.

It will be noted that while it was held in the Doremus and Flynn Cases that the restraint imposed by an agreement not to marry within a specified limited time was "general" within the meaning of the rule, it was intimated in the Knost Case and held in the White Case that restraint of that kind was "partial" only, and, in effect, that whether a contract was enforceable or not in a given case depended upon whether the restraint imposed, when considered with reference to the circumstances of such case, appeared to be reasonable or not.

We are inclined to think, in the light of all the authorities, and having in mind the basis of the rule, to wit, the interest the public has in the matter, that the term "general restraint" as used in the rule should be construed to mean restraint which binds a competent person not to marry any one at any time, and that the validity of a contract, where the restraint it imposes is only against marrying a particular person, or a person of a particular class, or within a specified limited time, should be determined with reference to the reasonableness of such restraint under the circumstances of the particular case. It might very well be that the public interest would be best served by upholding such a contract under the circumstances of one case, and by refusing to uphold it under the circumstances of another case. It seems to us that the doctrine now recognized by the courts is well stated in 6 R.C.L. 768, where it is said:

"The most that can be said is that it is only contracts in general restraint of marriage that are void on grounds of public policy. Although in many of the cases the broad rule is laid that contracts having a tendency to restrain marriage are void on grounds of public policy, there seems to be a tendency to limit the operation of the rule to such restraints as are unreasonable having regard to the relation of the parties and the object of the contract. Where, however, the restraint imposed is regarded as unreasonable, it is immaterial that it is for a limited period."

Holding, as we do, that the restraint imposed by the contract on Ella Hobson was not general, but partial only, the question remaining as to its validity is one as to the reasonableness of the restraint; for not-withstanding the restraint was partial only, if it was unreasonable under the circumstances shown in the testimony, the contract was void because contrary to public policy.

The circumstances were: Ella Hobson was the child of T. W. Barnes' brother. Her mother died at her birth in February, 1897. Her father (poor, financially) married again in 1907, and in 1911 she went to live on a farm with her grandmother, T. W. Barnes' mother, where she remained, doing all kinds of farm work and taking care of T. W. Barnes' mother, who was almost helpless, until 1913, when her grandmother died. She then lived for a while with J. A. Barnes, brother of T. W. Barnes, who paid J. A. Barnes her board. She was about 16 years old in 1913, when the contract in question was made. T. W. Barnes was then a childless widower about 48 years of age. In a letter dated November 11, 1913, containing the proposition which Ella Hobson accepted, T. W. Barnes wrote her as follows:

"Ella, I have made my accident insurance policy payable to you in case I get killed on R. R. or other accidental way you will get $5,000. Now if you will promise me that you won't marry and be a good girl until your are 22 years old I will give you a good house and lot in Dallas, Tex., worth $5,000 when I die and if I get accidentally killed you would get $5,000 in cash and the house and lot. There ain't anything in marrying young fellows that hasn't got anything. They will just drag you round and about just like they do before they marry. Of course there are some few that makes good. But you would have to work just as hard as you do now, and possibly harder. I know of course that things come up sometimes that is not pleasant at home but it would come up just the same if you was married, and perhaps worse and things could be a hold lot worse if you married. Now take my advice and let me here from you by return mail."

When the age of Ella Hobson, her dependent condition, and the temptation such condition may have been to make a hasty and imprudent marriage, the relationship existing between her and T. W. Barnes, the interest he evinced in her welfare, and the time during which she was to refrain from marrying, are considered, it seems to us it should not be held that the finding of the trial court that the restraint imposed was reasonable was unwarranted. The case on its facts is not like the Doremus, Elynn, and Sinnickson Cases, referred to above. In neither of those cases did it appear that the other party to the contract had the interest of kinship in the plaintiff, or any interest because of any kind of relationship between them. In neither of those cases was the age of the plaintiff at the time the contract was entered into shown. And in neither of them was any other circumstance shown relevant to the reasonableness of the restraint, except the time it was to operate.

Appellees insist that if the agreement of Ella Hobson not to marry before she was 22 years of age was not a consideration the law recognized as sufficient to support a contract, because of the rule in question, her promise and compliance with it to be a "good girl" was a sufficient consideration for the contract and bound T. W. Barnes to comply with his undertaking thereunder. It is asserted in support of the contention that Ella Hobson "was under no obligation to T. W. Barnes to be a good girl," and that her promise was within a rule stated in 13 C.J. 324, as follows:

"A valid consideration may be the doing or the promising to do something not illegal, at the request of the promisor, which the promisee is not already under legal obligation to do, or the forbearing to do something which he has a legal right to do. It is clear that a consideration need not be a thing of pecuniary value or even reducible to a money value. A promise, for example, to pay another a certain sum of money if he will abstain from the use of liquor and tobacco for a certain time is binding in favor of the promisee, on the ground that a man has a legal right to use liquor and tobacco. And so it has been held of a promise to pay to a divorced wife a stated annuity if she will conduct herself with sobriety and in a reputable, orderly and virtuous manner, as she is under no obligation to the husband to remain sober or virtuous."

The word "good" as commonly used has more than one meaning. There is no testimony in the record as to what T. W. Barnes meant by it in the phrase "be a good girl," used in his letter to Ella Barnes dated November 11, 1913, set out above; but Ella Hobson testified she understood him to mean that she would not present a claim against her grandmother's estate — on what account was not stated. It can hardly be doubted if T. W. Barnes, in using the word referred to meant what Ella Hobson understood him to mean, and she had or was asserting a claim against her grandmother's estate, that her agreement to forego presenting it would be a sufficient consideration for T. W. Barnes' undertaking to will her the house and lot in Dallas he had in mind when he wrote the letter. And while the majority of the court think to the contrary, it is not clear to the writer that Ella Hobson's agreement to be a good girl until she was 22 years of age, and her admitted compliance with the agreement in whatever sense the words may have been used, was not a sufficient consideration for the contract. If it was, then the fact that the undertaking of T. W. Barnes was also based on a consideration the law did not recognize as valid was not a reason why the contract should not be enforced. The rule that "if there are several considerations for one promise, some of which are legal and others illegal, the promise is wholly void," would not apply because neither of the two considerations on which the contract in question here was based was illegal. King v. King,63 Ohio St. 363, 59 N.E. 111. 52 L.R.A. 157, 81 Am. St. Rep. 635; Fletcher v. Osborn, 282 Ill. 143, 118 N.E. 446, L.R.A. 1918C, 331; Jones v. Sullivan, 9 Ont. L. 27, 4 Ann.Cas. 729. In the King Case the court said:

"A void contract is one which has no legal force, and which, for that reason, cannot be enforced: an unlawful contract is one to do an act which the law forbids, or to omit an act which the law enjoins, and for that reason is nonenforceable. There is no provision, either by statute or at common law, which enjoins upon any particular person the duty to marry; nor can any one be punished for not marrying. To marry or not to marry is left to the free choice of all who are eligible to marriage. Hence to omit to marry is not illegal, though the promise to omit is one which the law will not enforce. It would appear naturally to follow that the only result of making such a promise would simply be that no legal right could be founded on the promise, and no remedy afforded for its breach. It is difficult to see any good reason for denouncing such contract as illegal in the sense of violating any law, or of placing parties who have entered into it outside the pale of the law."

Both appellant and appellees complain of the judgment so far as it was in Ella Hobson's favor for $1,050 of the $7,000 she claimed as damages she was entitled to for the breach by T. W. Barnes of his undertaking, as alleged, to will her the property in Dallas known as 4017 Worth street. Appellant insists Ella Hobson was not entitled to anything on account of that claim, while appellees insist she was entitled to have the claim established for $5,000, the value of the property as found by the trial court.

Appellant urges in support of her contention that if the recovery was upon the express contract set up in appellee's petition it was without support in the testimony, and that if it was upon the implied contract to pay Ella Hobson the value of services she rendered in keeping house for T. W. Barnes in Dallas, set up in said petition, it was unauthorized because the right of appellees to maintain a suit therefor was barred by the statute of limitations of two years at the time the suit was commenced. When the findings of the trial court (set out above) are looked to, it is plain, we think, that the basis of the judgment for the $1,050 was the express contract, and not the implied contract set up in the petition. That being true, it is necessary in disposing of the contention to determine whether the findings of the court referred to had sufficient support in the testimony or not.

Due, doubtless, to the fact that Ella Hobson and T. W. Barnes alone knew the conditions under which Ella Hobson went to Dallas in June, 1916, and kept house for T. W. Barnes until January, 1919, and the facts that T. W. Barnes was dead and Ella Hobson could not because of the inhibition in the statute (article 3690, Vernon's Statutes) testify as to those conditions, there was no direct evidence showing that they entered into a contract about the matter, as found by the court, and, if they did, what the terms of the contract were. J. A. Barnes testified that he began rebuilding the house at 4017 Worth street for T. W. Barnes in January, 1916; that while he was engaged in that work T. W. Barnes told him that he wanted him to make a "good job of it, he was going to give the house to Ella"; that she was "coming to live with him and he was going to make her his heir." The witness further testified that in June, 1916, Ella Hobson was living with him and his family at Roxton, when T. W. Barnes came to where the witness was at a gin; that T. W. Barnes then stated to him that Ella Hobson was going to Dallas to keep house for him; that directly afterward T. W. Barnes called up Ella Hobson over the ``phone and had her to come to the gin, telling her he had "important matters he wanted to talk to her about"; that after T. W. Barnes talked with Ella Hobson on that occasion, he stated to the witness that she "would soon leave the witness' house and go to Dallas to keep house for him" (T. W. Barnes); that he had made a trade with her to that effect, Arthur Barnes testified that while Ella Barnes was keeping house for T. W. Barnes in Dallas, at 4017 Worth street, he asked said T. W. Barnes what he was paying her to stay with him, and T. W. Barnes replied:

"I am not paying her anything now, but I have provided for her and she will get this place that we are living in now."

It appeared from a will made by T. W. Barnes November 29, 1916 (revoked by a will he made November 9, 1919), that he then made provision for her by bequeathing to her practically all his estate.

We do not think the testimony referred to (and it is all we have found in the record which can be regarded as pertinent to the issue) warranted the finding of the trial court that T. W. Barnes contracted with Ella Hobson to bequeath her the Worth street property in consideration of an undertaking on her part to live with and keep house for him in Dallas until she was 22 years of age. The rule is that an agreement to make a will in return for services must be "fully and satisfactorily proved." Dyess v. Rowe (Tex. Civ. App.) 177 S.W. 1001. The most the testimony can be said to have established was that T. W. Barnes intended in 1916 to compensate Ella Hobson for service she was rendering him, by making provision for her in his will. The testimony wholly failed to show, we think, that he agreed with her to will her the Worth street or any other property as compensation for her services. It was sufficient, we think, to show that T. W. Barnes was liable to Ella Hobson in the sum found by the court on the implied contract set up in the petition, but, as we have seen, the judgment was based on a finding that the contract was an express one. Whether the judgment should nevertheless be affirmed because supported by the pleading and testimony, if it were otherwise valid, need not be determined, for it was not otherwise valid. Appellant defended against the recovery had on the ground that the cause of action asserted by appellees on the implied contract was barred by the statute of limitations of two years at the time the suit was commenced. We think the defense was established by the testimony, and that appellees should have been denied the recovery had on account of service Ella Hobson rendered in keeping house for T. W. Barnes. It was shown that she ceased to perform such service January 15, 1919. She might then have sued for the value of service she had rendered, but she did not, and this suit was not commenced until more than two years thereafter, to wit, April 10, 1922,

The conclusion reached that the testimony did not warrant the finding that T. W. Barnes contracted with Ella Hobson to will her the Worth street property, if she would go to Dallas and keep house for him until she was 22 years of age, in effect overrules appellees' contention that they were entitled to have Ella Hobson's claim based on the alleged breach of such a contract allowed for $5,000, the value of said Worth street property as found by the court.

The judgment will be affirmed so far as it approves the claim of Ella Hobson for $5,000 based on the contract of November, 1913, and will be reversed so far as it approved for the sum of $1,050 the claim of Ella Hobson based on the contract alleged to have been made in June, 1916, and judgment will be rendered here that appellees take nothing on account of the claim based on that contract.