Lowe v. Doremus

The opinion of the court was delivered by Garrison, J.

It was error to direct a verdict for the plaintiff, ail’d it was likewise error to refuse to direct a verdict for the defendant.

The contract sued on was in general restraint of marriage and consequently void. In Sterling v. Sinnickson, 2 South. 871, *756, the action was 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.

The ground of this decision, as stated by Chief Justice Kirkpatrick, was that the law regards marriage as at the foundation of the social order, and hence removes out of the way every unreasonable restraint upon it, and that a restraint "upon the freedom of choice and of action in a case where the law wills, that all shall be free” is an unreasonable restraint as against public policy.

*660 That case is not so strong as this, for there the sealed bill implied a legal consideration and the restraint was for bnt six months, whereas here the consideration that had to be proved was a restraint of indefinite duration.

This early New Jersey case is cited in the note to Lowe v. Peers, in 6 Eng. Rul. Cas. 347, where the English and American authorities are collected.

The trial judge was influenced by the argument that the consideration of the note was severable into three distinct undertakings, the performance of any of which would constitute a good consideration. This clearly is not so. The consideration was the services of an unmarried woman who was to continue as such during the term of her employment. If the plaintiff had married the day after she got the note she could not, by merely tendering her services as a married woman, have maintained an action upon the note if such services were declined by the maker thereof.

Whether it was not in any event a question for the jury whether the note had in fact the consideration sworn to by the plaintiff or whether it was not an attempted testamentary gift is not now before us in view of our decision of the more fundamental question.

The record before us not being such that a final judgment can be entered upon it, the judgment below is reversed and a venire de novo awarded.

For affirmance — Minturn, Kalisch, JJ. 2V For reversed — The Chancellor, Chibe Justice, Garrison, Swayze, Trenchard, Parker, Voorhees, Bogbrt, Vredenburgh, Congdon, White, Terhune, Heppen-HEIMER, JJ. 13.