well have thought that that was the correct legal phraseology for an absolute divorce. She testified that at the time she married Mr. Fox she did not know there were different kinds of divorce judgments; that she first learned that fact after his death. In Thomas v. Thomas, 88 Wis. 88, 59 N. W. 504, it was held that a woman was not chargeable with knowledge that a decree of divorce obtained without the requisite period of residence in the state was void. Upon the evidence we think the jury were warranted in holding that she did not know the legal effect of the divorce from bed and board, and she was not, under the circumstances, as a matter of law, chargeable with knowledge thereof.

The claim that plaintiff was informed that she lived in adultery with Mr. Fox rests upon conflicting testimony, and we cannot disturb the jury's conclusion as to where the truth lies. The question presents whether or not the plaintiff, under the verdict rendered, is entitled to recover for services and rent of house.

itself

Courts are practically unanimous in holding that, when a woman voluntarily and knowingly lives in illicit relations with a man, she can

-services by

in illicit relations with man.

not recover on an Work and labor implied contract for woman living services rendered him during the period of such relationship. Emmerson v. Botkin, 26 Okla. 218, 29 L.R.A. (N.S.) 787, 138 Am. St. Rep. 953, 109 Pac. 531.

Some courts hold that she can recover on an express contract, if it does not form a part of the agreement for illicit relations. Ibid. On the question here presented, as to whether a woman who in good faith believes she is married to a man when she is not, owing to his fraud. or to a mistake of fact, can recover for services rendered him during the supposed marriage, the courts do not agree. Massachusetts holds that she cannot, on the ground that,

since no compensation was contemplated by the woman or by the parties, the law can imply no agreement to pay. Robbins v. Potter, 11 Allen, 588; Cooper v. Cooper, 147 Mass. 370, 9 Am. St. Rep. 721, 17 N. E. 892; Ogden v. McHugh, 167 Mass. 279, 57 Am. St. Rep. 456, 45 N. E. 731. Other courts hold that she can recover on an implied contract when she in good faith believes herself to be his wife. Higgins v. Breen, 9 Mo. 497; Sanders v. Ragan, 172 N. C. 612, L.R.A.1917B, 681, 90 S. E. 777; Emmerson v. Botkin, supra; Keener, Quasi Contr. 682. The latter holdings are based on the ground that, since his estate has been enriched at her expense, equity demands that she shall be made whole. The doctrine of assumpsit is applied. It is inferred from the nature of the transaction, and the supposed husband is held to have assumed to pay, because in point of law and equity it is just that he should pay. We think the latter doctrine is the more just and logical, and adopt it in this case. Here it is found that the supposed husband, by express fraudulent representations, induced plaintiff to enter into the illicit relation. It is, therefore, just and equitable that his estate should reimburse her for the actual money value she has added thereto. Whether the court would so hold in a case where both parties in good faith, but mistakenly, entered into a marriage, need not now be decided.

-services ren

dered under

mistaken belief of marriage.

There can be no question but that an action based on the implied promise to pay for services and rent survives, and that the Statutes of Limitation do not bar the claim for the last six years. That is all the court allowed.

Judgment affirmed.

Eschweiler, J., dissenting:

The lengthy claim filed by respondent in the county court and certified to the circuit court upon her demand for a jury clearly and emphatically stated a cause of ac

tion for a tort. It was, in substance, that during the two months prior to November 21, 1914, the plaintiff, a business woman then about fiftytwo years of age, divorced from her first husband in 1900, was wooed and won by V. H. Fox, now deceased, by means of false representations that his divorce from bed and board in 1913 was valid, and no impediment to the marriage contract of November, 1914. It is also alleged that Fox, fraudulently and maliciously intending to damage and wrong her, to humiliate and disgrace her, to obtain her aid and services and to enrich his estate, maliciously and fraudulently commenced to pay her attentions and to win her affections; that she relied upon such representations, believed them, and that he loved her; that to carry out his wicked and fraudulent scheme he induced her to enter into the contract of November, 1914. She also alleged subsequent cohabitation, and her belief in there being a legal relationship of husband and wife; that the falsity of the representations was not ascertained until after Fox's death.

That, on account of her belief in and reliance upon such false and fraudulent representations made prior to the contract, she turned over her earnings to him, gave him a home, did his laundry, nursed and cared for him, and furnished him board. That, on account and as a result of such false and fraudulent representations, the resulting contract, and subsequent cohabitation, she lived, from the date of such contract to his death, in a false and degraded position, has suffered mental and physical pain, has been deprived of the benefits springing from a legal marriage, defeated of her dower rights, and that decedent and his estate were wrongfully enriched at plaintiff's expense and to her damage. Not only was a tort action so plainly stated, but the special verdict submitted the appropriate questions for just such a tort action.

She necessarily and concededly rendered the services for which she

recovers herein, because, and only because, of the contract of November, 1914; otherwise, the relationship would be such as to defeat any possible right to recover. She could not base any right to recover for services during the latter years, except upon reliance on the supposedly legal contract of 1914, and subsequent cohabitation in continued reliance thereupon. Her possible good faith in the matter could not, under the law, alter the situation in which the parties were placed, and no length of time of subsequent cohabitation could change the status of the parties from the meretricious one which this was and continued to be. If a prosecution for adultery had been instituted, plaintiff's mistake, if any, as to the law, or lack of intention to commit such an offense, would, it would seem under the authorities, have been no defense. State v. Goodenow, 65 Me. 30, 1 Am. Crim. Rep. 42; Com. v. Elwell, 2 Met. 190, 35 Am. Dec. 398 (cited with approval in Com. v. Sacks, 214 Mass. 72, 74, 43 L.R.A. (N.S.) 1, 100 N. E. 1019, Ann. Cas. 1914B, 1076); State v. Whitcomb, 52 Iowa, 85, 87, 35 Am. Rep. 258, 2 N. W. 970; Geisselman v. Geisselman, 134 Md. 453, 107 Atl. 185, 188; 2 C. J. p. 16; 1 R. C. L. p. 644.

Assuming the findings of the jury to be correct, a gross fraud was perpetrated upon her in 1914, from which the entire subsequent relationship of the parties must necessarily be traced. To the cause of action so founded the Statute of Limitations was properly pleaded, and under the undisputed facts the period under which she could obtain the remedy for such fraud in 1914 had expired prior to the death of the decedent. For such a cause of action it is entirely immaterial that she may not have discovered it until after the statutes had run.

I think the situation comes squarely within repeated decisions. of this court, particularly such as Stahl v. Broeckert, 170 Wis. 627, 176 N. W. 66, where the Statute of Limitations defeated the rights of

an aged widow, who was fraudulently induced to sign a certain note and mortgage; Darling v. Nelson, 171 Wis. 337, 176 N. W. 847, where sisters were alleged to have been fraudulently induced by their brothers to execute a conveyance of certain interest in real estate; Sander v. Newman, 174 Wis. 321, 181 N. W. 822, where the complaint was because of alleged fraud in collecting and appropriating secret profits by one set of associates in a real estate transaction; and in many cases cited in those opinions.

Cooper v. Cooper, 147 Mass. 370, 9 Am. St. Rep. 721, 17 N. E. 892, is a case almost identical in facts with the one here, and relief was denied, as well as in Graham v. Stanton, 177

Mass. 321, 58 N. E. 1023, where services were rendered by a child to one falsely representing that he had legally adopted such child.

I am further convinced from the record in this case that the plaintiff, having possession of a copy of the decree of divorce between decedent and his first wife, with ample opportunity of ascertaining its nature, having been divorced herself, of business experience, of mature age, should be held bound by the notice of its nature appearing on its face, or so easily ascertainable, and that the finding of the jury in that regard should have been set aside.

I am authorized to state that Mr. Justice Rosenberry concurs in the foregoing dissenting opinion.

There is, as stated in the reported case (RE Fox, ante, 420), a division of opinion upon this subject, but a majority of the cases and the modern trend of the decisions seem to be in accordance with the rule in the reported case, that a woman who, in good faith, lives with a man under the mistaken belief, caused by his fraud, that they are lawfully married, may recover, as upon implied contract, the value of the services rendered him.

It is so held in Fox v. Dawson (1820) 8 Mart. (La.) 94, Higgins v. Breen (1845) 9 Mo. 497, and Sanders v. Ragan (1916) 172 N. C. 612, L.R.A. 1917B, 681, 90 S. E. 777. In all of these cases, as in the reported case (RE Fox), the recovery was had against the husband's estate, and in the Higgins Case alone was the question raised as to whether her right of action survived against his personal representatives. In the reported case the court said that there could be no question but that such right of action, based upon the implied promise to pay for the services, survived.

A woman so living with a man may recover not only for her services as a housewife, but also for aid rendered

to him in his business. See Higgins v. Breen (1845) 9 Mo. 497.

She may also recover for moneys of hers received by him, or lent by her to him. See Fox v. Dawson (La.) and Sanders v. Ragan (N. C.), supra.

She may recover, also, the rental value of her house in which he lived with her (see RE Fox (reported herewith) ante, 420), and for the use by him of her furniture and the hire of her negroes (see Fox v. Dawson (La.) supra).

As to the reason for her right to recover, the court, in Fox v. Dawson (La.) supra, said that the marriage contract, upon which she surrendered her person, property, and affairs, being illegal and void, she had a right to be indemnified against the consequences of his deceit. And in RE Fox (reported herewith) it was stated, to the same effect, that as the supposed husband, by express fraudulent representations, induced her to enter into the illicit relation, it is just and equitable that his estate should reimburse her for the actual money value she has added thereto.

It appears, however, in Sanders v. Ragan (N. C.) supra, that the amount

of her recovery should be reduced by the cost to him of her maintenance, since in that case the trial court charged that the law raised an implied promise to pay her for what the jury might find her services to be reasonably worth, over and above-that is, in excess of what benefits by way of food and clothing and keep and maintenance she received from him, if any they should find; and the amount of the verdict shows that the jury followed this instruction, and the verdict was sustained by the appellate court. Authority contrary to the rule in RE FOX (reported herewith) ante, 420, is found in Cooper v. Cooper (1888) 147 Mass. 370, 9 Am. St. Rep. 721, 17 N. E. 892, which holds that a woman who is induced to marry a man by his false representations that he has been divorced from his former wife, and learns the truth after his death, cannot recover from his administrator for her services as housekeeper rendered to the intestate.

The holding in the Cooper Case is based upon the theory that there can be no implied promise by the man to pay for services rendered by the woman while they are living together as husband and wife, and that their actual relations, and the circumstances under which the work is performed, negative any implication of a promise to pay. The court said, in this connection: "The fact that the plaintiff was led by mistake or deceit into assuming the relation of a wife has no tendency to show that she did not act in that relation; and the fact that she believed herself to be a wife excludes the inference that the society and assistance of a wife, which she gave to her supposed husband, were for hire. It shows that her intention in keeping his house was to act as a wife and mistress of a family, and not as a hired servant."

In this connection it may be observed that, in general, as stated in 6 R. C. L. 588, a promise will not be inferred, where there are facts wholly inconsistent with the contract to be implied.

It is stated in the Cooper Case that the plaintiff's proper remedy was by

an action of tort for the deceit in inducing her to marry deceased by false representations, or by a false promise

a

citing Blossom v. Barrett (1868) 37 N. Y. 434, 97 Am. Dec. 747, in which woman in similar circumstances successfully maintained an action to recover damages from the man who fraudulently induced her to marry him. It is further stated in the Cooper Case, in this connection, that the injury which was sustained by plaintiff was in being led by the promise, or the deceit, to give the fellowship and assistance of a wife to one who was not her husband, and that the duty which the intestate owed to her was to make recompense for the wrong which he had done to her. It was contended that from this duty the law raised a promise to pay her for her services as housekeeper; but the court answered this contention by saying: "The obligation to make compensation for the breach of contract could be enforced only in an action upon the contract. The obligation to make recompense for the injury done by the tort was imposed by law, and could be enforced only in an action of tort; it was not a debt or duty upon which the law raised a promise which would support an action of contract. . . . But the objection to maintaining the plaintiff's action lies deeper. The work and labor never constituted a cause of action in tort. The plaintiff could have maintained no action of tort against the intestate for withholding payment for the work and labor in housekeeping, or for the false representations inducing her to perform the work without pay. The particular acts which she performed as a wife were not induced by the deceit, so that each would constitute a substantive cause of action, but by the position which she was deceived into assuming, and would be elements of damage in an action for that deceit. Labor in housekeeping was a small incident to a great wrong, and the intestate owed no duty, and had no right, to single that out and offer payment for it alone; and the offer to do so might well have been deemed an aggravation of the injury to the plaintiff."