The Law of Contracts

tract by which a husband agrees to pay a sum of money if he subsequently gives cause for divorce-not as a substitute for other redress by the wife but in addition to it.87 An agreement by a married man to marry another woman after a divorce not as yet granted from his present wife is illegal; 88 but if a divorce has already been granted and remarriage is forbidden until the laspe of a specified time, a contract made before lapse of that time to marry after its expiration is valid; 89 and though a promise to marry another after the death of the promisor's present spouse is against public policy," a contract to marry after the death of a divorced spouse, where only religious, not legal grounds prevented an immediate marriage is unobjectionable.91

377, 379, 87 Atl. 729, the court said: "There is a difference of opinion as to the validity of contracts made after divorce proceedings have been independently commenced or determined upon, and where the agreement is in fact an amicable arrangement as to the amount of alimony to be paid in the event of a divorce being granted. In some jurisdictions contracts of this general character are permitted, and even favored. Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700; Burnett v. Paine, 62 Me. 122; Badger v. Hatch, 71 Me. 562; Snow v. Gould, 74 Me. 540, 43 Am. Rep. 604; Warren v. Warren, 116 Minn. 458, 133 N. W. 1009; Randall v. Randall, 37 Mich. 563; Palmer v. Fagerlin, 163 Mich. 345, 128 N. W. 207 [Emerson v. Emerson, 120 Md. 584, 87 Atl. 1033; Werner v. Werner, 153 N. Y. App. D. 719, 138 N. Y. S. 633; Hammerstein v. Equitable Trust Co., 156 N. Y. App. D. 644, 141 N. Y. S. 1065; Burgess v. Burgess, 17 S. Dak. 44, 95 N. W. 279]. In other jurisdictions such contracts are held to be contrary to public policy. Lake v. Lake, 136 N. Y. App. D. 47, 119 N. Y. S. 686; Speck v. Dausman, 7 Mo. App. 165; Muckenburg v. Holler, 29 Ind. 139, 92 Am. Dec. 345; Hamilton

v. Hamilton, 89 Ill. 349; Seeley's

Appeal, 56 Conn. 202, 14 Atl. 291." In Maisch v. Maisch, supra, the Connecticut court held that though such an agreement might be invalid if made in Connecticut, yet if made in another State where it was valid, it might be enforced in Connecticut.

87 Bowden v. Bowden, 175 Calif. 711, 167 Pac. 154, L. R. A. 1918 A. 380. 88 Carter v. Rinker, 174 Fed. 882; Leupert v. Shields, 14 Colo. App. 404, 60 Pac. 193; Noice v. Brown, 38 N. J. L. 228, 20 Am. Rep. 388, 39 N. J. L. 133, 23 Am. Rep. 213; Williams v. Igel, 62 N. Y. Misc. 354, 116 N. Y. S. 778; Pierce v. Cobb, 161 N. C. 300, 77 S. E. 350, 44 L. R. A. (N. S.) 379; Johnson v. Iss, 114 Tenn. 114, 85 S. W. 79, 108 Am. St. 891; Leaman v. Thompson, 43 Wash. 579, 86 Pac. 926.

89 Buelna v. Ryan, 139 Calif. 630, 73 Pac. 466; Harpold v. Boyle, 16 Idaho, 671, 694, 102 Pac. 158, 165; Morgan v. Muench (Ia.), 156 N. W. 819. Cf. Haviland v. Halstead, 34 N. Y. 643.

90 Spiers v. Hunt, [1908] 1 K. B. 720; Wilson v. Carnley, [1908] 1 K. B. 729; Paddock v. Robinson, 63 Ill. 99, 14 Am. Rep. 112.

91 Brown v. Odill, 104 Tenn. 250, 56 S. W. 840, 52 L. R. A. 660, 78 Am. St. 914.

§ 1744. Agreements to resume marital relations.

There seems no reason why an agreement to resume marital relations where one of the parties has just cause for divorce should not be sustained, and it is generally held than an agreement in consideration of such resumption and of the dismissal or forbearance to bring justified proceedings for divorce,92 or in compromise of legal proceedings for non-support,93 is valid. On the other hand, if there is no justification for divorce or separation, an agreement to continue or resume marital relations is certainly insufficient consideration and probably also unenforceable on grounds of policy.94

§ 1745. Immoral agreements.

950

Future illicit cohabitation will not serve as consideration for a promise either of marriage,95 the support of a child," or of pecuniary advantage.

92 Phillips v. Meyers, 82 Ill. 67, 25 Am. Rep. 295; Polson v. Stewart, 167 Mass. 211, 45 N. E. 737, 36 L. R. A. 771, 57 Am. St. Rep. 452; Reithmaier v. Beckwith, 35 Mich. 110; Duffy v. White, 115 Mich. 264, 73 N. W. 363; Mack v. Mack, 87 Neb. 819, 128 N. W. 527, 31 L. R. A. (N. S.) 441; Barbour v. Barbour, 49 N. J. Eq. 429, 24 Atl. 227; Adams v. Adams, 91 N. Y. 381, 43 Am. Rep. 675; Sommer v. Sommer, 87 N. Y. App. Div. 434, 84 N. Y. S. 444. But where the promisor was co-respondent in the divorce suit the transaction was held against public policy. Gipps v. Hume, 7 Jur. (N. S.) 1301.

93 Bolyard v. Bolyard, 79 W. Va. 554, 91 S. E. 529, L. R. A. 1917 D. 440.

94 Miller v. Miller, 78 Iowa, 177, 35 N. W. 464, 42 N. W. 641, 16 Am. St. Rep. 431; Michigan Trust Co. v. Chapin, 106 Mich. 384, 64 N. W. 334, 58 Am. St. Rep. 490; Roberts v. Frisby, 38 Tex. 219, 220. Cf. Montgomery v. Montgomery, 142 Mo. App. 481, 127 S. W. 118. In Merrill v. Peaslee, 146 Mass. 460, 16 N. E. 271, 4 Am.

The fact that past cohabi

St. Rep. 334, a promise made in consideration of the plaintiff's return to her husband whom she had left, was held invalid although it was admitted that she had good cause for divorce. Three judges dissented and the case seems of doubtful correctness. It seems, however, to have been approved in Oppenheimer v. Collins, 115 Wis. 283, 91 N. W. 690, 60 L. R. A. 406.

95 Hanks v. Naglee, 54 Calif. 51, 35 Am. Rep. 67; Boigneres v. Boulon, 54 Calif. 146; Edmonds v. Hughes, 115 Ky. 561, 74 S. W. 283; Steinfeld v. Levy, 16 Abb. Pr. (N. S.) 26; Baldy v. Stratton, 11 Pa. St. 316, 323; Goodall v. Thurman, 1 Head, 209; Burke v. Shaver, 92 Va. 345, 23 S. E. 749. But a prior valid contract to marry is not made unenforceable by illicit cohabitation. Henderson v. Spratlen, 44 Colo. 278, 98 Pac. 14, 19 L. R. A. (N. S.) 655; Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 275.

95a Friend v. Harrison, 2 C. & P. 584; Trovinger v. McBurney, 5 Cow. 253; Randolph v. Stokes, 125 N. Y. App. D. 679, 110 N. Y. S. 20.

96 Walker v. Perkins, 3 Burr. 1568,

tation is the motive for a promise will not invalidate it,97 though such cohabitation, is not in itself sufficient consideration.98 As a consideration partly illegal for an indivisible promise vitiates the whole promise, one who serves as housekeeper or servant under a contract of employment cannot recover on the contract if illicit cohabitation was contemplated and actually took place,99 and no quasi-contractual recovery can be had for the lawful services actually rendered under such an agreement. The sale or agreement to sell anything in itself immoral or obscene, or an agreement to manufacture anything of the kind,3 is invalid. How far knowledge that performance of an agreement, lawful in itself, will be used in an improper way, taints the agreement, is later considered.1

§ 1746. Contracts inimical to Christianity.

In the early common law an attack upon Christianity, no 612, 90 S. E. 777, L. R. A. 1917 B. 681.

1 W. Bl. 517; Smyth v. Griffin, 14 L. J. Ch. (N. S.) 28; Sismey v. Eley, 17 Sim. 1; Winebrinner v. Weiseger, 3 T. B. Mon. 32, 35. Cf. Doty v. Doty's Guardian, 118 Ky. 204, 80 S. W. 803, 2 L. R. A. (N. S.) 713.

Whaley v. Norton, 1 Vern. 483; Gray v. Mathias, 5 Ves. 286; Nye v. Moseley, 6 B. & C. 133; Friend v. Harrison, 2 C. & P. 584; Ex parte Nader, L. R. 9 Ch. 670; Gay v. Parpart, 106 U. S. 679, 27 L. Ed. 256, 1 S. Ct. 456; Burgen v. Straughan, 7 J. J. Marsh. 583; Brown v. Kinsey, 81 N. C. 245; Burton v. Belvin, 142 N. C. 151, 55 S. E. 71 (even though cohabitation continues); Wyant v. Lesher, 23 Pa. 338.

98 Supra, § 148.

"Walker v. Gregory, 36 Ala. 180; Sackstaeder v. Kast, 31 Ky. L. Rep. 1304, 105 S. W. 435.

1 Gjurich v. Fieg, 164 Cal. 429, 129 Pac. 464, Ann. Cas. 1916 B. 111; Simpson v. Normond, 51 La. Ann. 1355, 26 So. 266; Brown v. Tuttle, 80 Me. 162, 13 Atl. 583; Vincent v. Moriarty, 31 N. Y. App. D. 484, 52 N. Y. S. 519. Cf. Sanders v. Ragan, 172 N. C.

2 In Fores v. Johnes, 4 Esp. 97, the court said: "For prints whose objects are general satire or ridicule of prevailing fashions or manners, I think the plaintiff may recover; but I cannot permit him to do so for such whose tendency is immoral or obscene; nor for such as are libels on individuals and for which the plaintiff might have been rendered criminally answerable for a libel." An agreement for the sale of an obscene book would doubtless fall within the same principle, but a contract for the sale of Voltaire's works was upheld in St. Hubert Guild v. Quinn, 64 N. Y. Misc. 336, 118 N. Y. S. 582.

One who contracts to print an obscene book cannot recover for his work in performing the contract. Poplett v. Stockdale, Ry. & Moo. 337, and the copyright of such a book will not be protected. Stockdale v. Onwhyn, 5 B. & C. 173; so of a libellous publication. Walcott v. Walker, 7 Ves. 1; Hime v. Dale, 2 Camp. 27, n. ▲ Infra, §§ 1754, 1755.

matter in how decorous a manner conducted, was a criminal offence; and it necessarily follows that any contract involving such an attack would be unlawful. At the present time, however, the promotion of atheism or other religions than Christianity in decorous ways is not a crime; but a contract with such objects may, nevertheless, conceivably be opposed to public policy. It was so held in England in 1867,7 but at the present day it may be doubtful if this decision would be followed, and it is probable that so long as no other interference with rights and opinions of those holding more orthodox views is contemplated than is necessarily involved in an orderly discussion or advocacy of atheistic or heretical doctrines, a contract with such objects would be enforced.8

5 See 4 Bl. Com. 41; 31 Harv. L. Rev. 289.

31 Harv. L. Rev. 291.

7 Cowan v. Milbourn, L. R. 2 Exch. 230. A contract to let rooms for the delivery of lectures antagonistic to Christianity, was held unlawful and unenforceable. To the same effect is Pringle v. Napanee, 43 Up. Can. Q. B. 285. See also Zeisweiss v. James, 63 Pa. 465, 3 Am. Rep. 558.

8 In Bowman v. Secular Society, [1917] A. C. 406, a legacy to a society whose object was to promote the view that human conduct should be based on natural knowledge and not on supernatural belief was upheld. The court recognized that such a decision was inconsistent with Cowan v. Milbourn, stated in the preceding note, and overruled that case.

CHAPTER XLVIII

MISCELLANEOUS ILLEGAL AGREEMENTS

Contracts with alien enemies forbidden.

1747

Contracts with aliens suspended or avoided by declaration of war.

1748