JONES v. JONES.

27 P. 85

1 Colo.App. 28

JONES
v.
JONES.

Court of Appeals of Colorado

June 30, 1891

Error
to Arapahoe county court.

[1
Colo.App. 29] Caypless, Keeler & Sales, for plaintiff in
error.

G.M.
Allen, for defendant in error.

RICHMOND,
P.J.

In this
action plaintiff, Rebecca Jones, sought to recover of
defendant, H.F. Jones, a certain sum of money claimed to be
due under contract between them. Prior to the 29th of
November, A.D.1876, plaintiff and defendant were husband and
wife, and on that day articles of separation were entered
into, whereby H.F. Jones obligated himself to pay to Rebecca
Jones certain sums of money for her support during the time
they should remain separated. Previous to the 31st day of
August, 1887, H.F. Jones procured a decree of divorce, and on
that day entered into the contract sued on. The contract
recites the existence of the previous "articles of
separation," and the fact that they had been kept and
maintained in force until that date. Further, that a certain
change of circumstances had arisen, which rendered it
desirable that there should be changes and modifications in
the original articles; and in consideration of this fact and
one dollar H.F. Jones contracted to pay to Rebecca Jones
during the time she should remain single the sum of $45 per
month. Up to March 1, 1889, defendant fulfilled the contract.
Thereafter he defaulted, and suit was brought to recover the
amount due, $405. To the complaint a demurrer was interposed
and sustained, and leave was granted to amend the complaint.
Demurrer was filed to the amended complaint, which was
overruled, and subsequently default and final judgment
entered against the defendant, he having failed to answer. To
reverse this judgment this error is prosecuted.

[1
Colo.App. 30] The contention of plaintiff in error is: First,
that the contract was void, it being in restraint of
marriage, and therefore against public policy; second, that
the contract was without consideration. Addressing ourselves
to the first proposition, we must call attention to the
language of the contract: "It is hereby mutually
contracted and agreed that the party of the first part agrees
to and with the party of the second part to pay to her for so
long a time as she does not marry again the sum of $45 per
month for each and every month that the party of the second
part shall remain single and unmarried up to the date of her
death." This is not a contract in restraint of marriage.
No obligation is imposed upon the woman not to marry. She is
at liberty at any time to marry whom and where she will. The
condition is that he will pay the $45 per month, presumably
for her maintenance and support, so long as she may remain an
unmarried woman; and this was her situation, as averred in
the complaint, at the time of the institution of the suit.
There is nothing in the agreement, so far as we can discover
which in any way involves the question of morals or public
policy. It is unnecessary for us to express any opinion
relative to the contention of the plaintiff in error that a
contract in restraint of marriage is void as against public
policy, because it is evident from what we have already said
that we do not consider the question involved in this case.
Now, as to the second proposition,--that there was no
consideration to support this agreement. We must differ also
with counsel upon that proposition. Let us take into
consideration the situation of the parties. Unable or
unwilling to dwell together as man and wife, they entered
into an agreement to separate and live apart, she sacrificing
the comforts of home upon his promise to furnish her adequate
means of support. Thereafter, and while this contract is in
existence, the plaintiff in error procures a divorce,--upon
what grounds the record is silent. But it is [1 Colo.App. 31]
evident from the agreement entered into and sued upon that
practically no defense was made, and no alimony sought on the
part of the wife. After the divorce, and up to the date of
this agreement, the former contract was recognized as
binding, and acted upon by both parties, and in consideration
of the agreement to pay her at the rate of $45 per month she
agreed to release him from his former contract. What the
exact terms of the previous contract were we are not
informed, except so far as it is set out in the agreement
here. Its existence and legality is admitted, and by the
terms of this contract the defendant is released from its
performance, and the divorced wife surrenders what rights or
interests she had thereunder, and accepts in lieu thereof
this promise to pay. So far as is shown in this case, the
original agreement did not provide for its rescission or
termination upon a divorce being obtained. The promised
support would be just as much needed after divorce as before.
The record discloses that there was no agreement of parties
for the divorce, nor was there any in the negotiations
preceding the divorce that the contract should be annulled
thereby. A decree of divorce of its own force does not have
the effect of terminating the prior agreement for separate
support. "Some contracts of separation might offend
public policy and others not. Certainly there are cases where
a wife would be justified in separating from her husband and
asking support from him, notwithstanding the
separation." Carey v. Mackey, 82 Me. 516, 20 A. 84. An
agreement for support is not abrogated by a subsequent
divorce of the parties, at least when no provision for
alimony was made in the decree of divorce. Clark v. Fosdick,
118 N.Y. 7, 22 N.E. 1111; Galusha v. Galusha, 116 N.Y. 635,
22 N.E. 1114; Pettit v. Pettit, 107 N.Y. 677, 14 N.E. 500.
The agreement conclusively
[27 P. 86.]
shows that the defendant did receive something for the
promise made, to-wit, a release of his former agreement,
which may or may not have been more burdensome in its
requirements upon him than this one. [1 Colo.App. 32] A
valuable consideration, in the sense of the law, may consist
either in some right, interest, profit, or benefit accruing
to one party, or some forbearance, detriment, loss, or
responsibility given, suffered, or undertaken by the other.
Courts will not inquire into the adequacy of the
consideration. It is enough that there is actually a
consideration, that such consideration is legal, and that it
has some value. We think the judgment of the court below
should be affirmed.