Robbins v. Potter

Hoar, J.

1. The instructions given to the jury were in precise conformity with the rules given by this court when the case was before us on a former bill of exceptions, 11 Allen, 588 ; and the evidence now reported does not differ from that which we had then under consideration to such an extent as to make those instructions any the less appropriate. By an amendment to the pleadings the defendant was permitted to allege in his defence *534 that the plaintiff, at the time of the supposed contract, and ever since, was his wife; and it was intimated in the former opinion that this might enable him to rely upon the marriage as a defence. But if the marriage was in fact void, we did not intend to be understood as deciding that the fact that the parties had cohabited as husband and wife would estop the plaintiff from denying the marriage, if its invalidity appeared to be as well known to the defendant as to her. The estoppel would only exist as against a party who had been deceived by the pretence and appearance of marriage.

2. Upon the second ground of exception, that the court did not rule that the plaintiff was precluded from recovering by reason of the immoral and unlawful relation between the parties, or because the plaintiff could not maintain her action except by proof of her own turpitude, the position taken by the defendant cannot be supported. The plaintiff’s claim of compensation for services was abandoned at the trial, as it should have been. There is no contract implied by law to pay for services rendered between parties living together as husband and wife.

But to support her action for money paid by the plaintiff for the defendant’s use, and at his request, she was not obliged to prove any illegal or immoral act. The defendant set up as an answer or defence to her claim, that she was his wife; this she denied; and the same witness by whom he proved that the ceremony of marriage had passed between them, proved also that it was not a lawful marriage, because she had a prior husband dving. This left the express contract just where it stood before. She was not his wife, because it was not legally competent for her to marry him. She did not offer to prove, nor did the case require her to prove, that they had lived together in adultery, or had committed bigamy, but only that she was not his wife, because she was the wife of another. He attempted to shield himself from the performance of a lawful contract, by showing a pretended marriage, in the guilt of which he had participated with full knowledge of the fact. He thus undertook to avail himself of their criminal relation, by suppressing a part of the evidence to establish it; and sought to estop her from disclosing *535 the whole truth because she had been his accomplice. This the law will certainly not allow.

3. The defendant further argues that the evidence in the case would not justify a verdict for the plaintiff, because it would not authorize the jury to find that the contract declared on was.independent of the criminal relation of the parties; but on the contrary showed that it was made in furtherance of it. But this is not a motion for a new trial. There was some evidence for the jury in support of the plaintiff’s case, and its weight or sufficiency cannot be considered upon these exceptions. This was settled, and the reasons for it stated, in the recent case of Forsythe v. Hooper, 11 Allen, 419 . The plaintiff testified that there was no agreement or understanding that she would live with the defendant a day, when the money was lent. And though there was much in the case to control this evidence, it was for the jury to weigh and decide it.

4. There was evidence that the promise to repay the money lent or paid by the plaintiff, was originally a general promise, no time being fixed for the repayment. A promise afterward to pay it upon the happening of a certain event would not affect the right of the plaintiff, without a new agreement.

Exceptions overruled.