Dunbar v. Dunbar

The defendant in error, being the plaintiff below, brought her action in October, 1899, against the plaintiff in error, in the municipal court of Boston, to recover moneys alleged to be due upon a contract, which was set forth in the complaint. Issue was joined and the case tried before a single justice, and judgment ordered for the defendant, with costs. An appeal was taken to the superior court of the county of Suffolk, and that court ordered judgment for the plaintiff for one branch only of her claim. The case was reported to the supreme judicial court for the commonwealth, and that court ordered the court below to enter judgment for the plaintiff for both branches of her claim (180 Mass. 170, 62 N. E. 248), and the case was remanded to the superior court for the purpose of entering such judgment. Pursuant to the directions of the supreme court, the superior court did enter judgment against the defendant for both branches of her claim, for the sum of $851.60 and costs. The defendant then obtained a writ of error from this court, directed to the superior court of Massachusetts, where the record remained.

The case shows these facts: The parties were husband and wife, who, in 1889, were living apart, the husband in Ohio and the wife in Massachusetts. In May, 1889, the attorney for her husband came to Massachusetts and saw Mrs. Dunbar, and told her that her husband was about to seek a divorce from her. The wife at this time had no means, and the two sons of the marriage, then respectively nine and twelve years old, were living with her. The purpose of the visit of the attorney was to obtain some assurance from her that she would not contest the case, and, if she did not, that the husband would make provision for aiding in the support of herself and her sons until they arrived of age. The wife denied any intended desertion of her husband, but the result of the negotiations after the wife had taken counsel of friends was to give assurance to the attorney that no defense would be interposed if he made some suitable provision for herself and her children.

Upon the return of the attorney to Ohio, a suit for divorce was commenced by the husband, and the summons served by publication. No appearance was made and there was no opposition to the decree of divorce, which was obtained in July, 1889. It adjudged that the marriage contract theretofore existing between the parties was thereby dissolved, and both parties released from the obligation of the same, and 'that the custody of the children of such marriage, one boy, Harry H. Dunbar, aged twelve years, and Willie W. Dunbar, aged nine years, be, and the same are, to remain in charge and under the control of the said Lottie E. Dunbar, the said Horace B. Dunbar to have the privilege of seeing said children at all reasonable times.'

The ground of divorce was stated, and the court found 'upon the evidence adduced that the defendant has been guilty of wilful absence for more than three years last past from plaintiff, and that, by reason thereof, the plaintiff is entitled to a divorce as prayed for.'

After the divorce the husband sent to a friend of his wife, to be delivered to her in performance of his agreement, a written contract, in which he bound himself to pay to Lottie E. Dunbar, of Ashburnham, Mass., $500 yearly, so long as she remained unmarried, in monthly instalments. In that contract he also agreed to pay 'to our children, Harry H. Dunbar and Willie W. Dunbar, the sum of $250 each, yearly, until they each attain the age of fourteen years; after that age they are to be paid by me such extra allowance as will give them a good and sufficient education befitting their station in life, and a suitable maintenance until each attains the age of twenty-one years.' This writing was signed by the husband and acknowledged before a notary public of Hamilton, Ohio.

Payments upon this contract were made by the husband, but in 1896 they had become somewhat in arrears, and disputes arose as to the validity of the agreement. Thereafter another contract was entered into and payments were made as called for in that contract until some months prior to December 2, 1898. On such last-named date the defendant was adjudged a bankrupt, on his voluntary petition in bankruptcy, in the United States district court in bankruptcy, southern district of Ohio, western division, and on April 24, 1899, was discharged from all debts and claims provable, under the act of Congress relating to bankruptcy, against his estate, existing on the 2d day of December, 1898.

In the schedule of the defendant it appeared that he named the plaintiff as a creditor, as follows: Lottie E. Dunbar, Charlestown, Mass. $540

Alimony due up to present time. Lottie E. Dunbar, Charlestown, Mass. 1,300

Alimony payable yearly.

The plaintiff, at the first meeting of the creditors in bankruptcy proceedings, which was held before a referee appointed therein, appeared by an attorney, who produced and filed his power of attorney, and filed her claim for $691.63, for instalments on the contract due to December 2, 1898. The husband had paid nothing on the contract since some time before December 2, 1898, and finally the wife commenced an action to recover the amounts due thereon.

The following is a copy of the contract sued on:

'Controversies having arisen concerning the agreement heretofore made between Horace B. Dunbar and Lottie E. Dunbar in September, 1889, in consideration of said Lottie E. Dunbar's forbearance of suit on such controversies, and in settlement of all such controversies, and in substitution of said agreement of September, 1889, and in further consideration of the release by Lottie E. Dunbar and in satisfaction of all claims under said original agreement, Horace B. Dunbar agrees with the said Lottie E. Dunbar as follows:

'That said Horace B. Dunbar will pay to Lottie E. Dunbar during her life, or until she marries, for her maintenance and support, yearly, the sum of $500, and will pay to her yearly for the support and maintenance of her child, Harry H. Dunbar, the sum of $400 until he shall attain the age of twenty-one years; and shall pay to her yearly for the support and maintenance of her child, Willie W. Dunbar, the sum of $400 until he shall attain the age of twenty-one years, all said sums to be paid in equal monthly instalments between the 1st and 10th of each and every month,-the first instalment being for the month of May, 1896, shall be paid between the 1st and 10th of June, 1896.

'And, in addition to the foregoing, said Horace B. Dunbar agrees to pay the further sum of $100 between the 1st and 10th of July, 1896, over and above the instalment otherwise due for said month.

'And the said Lottie E. Dunbar hereby agrees that she has not, nor shall she have, any other claim or demand against Horace B. Dunbar for contribution to her support and maintenance, or for the support, maintenance, or education of said children, save and except as fixed and limited by this agreement.' Properly signed by both parties and witnessed. The particulars of her claim were stated as follows: Horace B. Dunbar to Lottie E. Dunbar, Dr.

1. To instalments due under covenant for alimony from December, 1898, to October 1, 1899, ten months, at $41.66 a month................... $416 60

Page 344 2. To monthly allowance due her for support and maintenance of Willie W. Dunbar, from December, 1898, to October 1, 1899, ten months, at $33.33 a month............................. 333 30 - $749 90

The defendant pleaded his discharge in court of the state held that it was not good.

Messrs. James Hamilton Lewis, George Fred Williams, and James A. Halloran for plaintiff in error.

Messrs. Frank H. Stewart and John Oscar Teele for defendant in error.

Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court: