On appeal from the Bayonne District Court.
For the plaintiff-respondent, Charles S. Barrett, Jr.
For the defendant-appellant, John G. Flanigan.
Before Justices Lloyd, Case and Donges.
The opinion of the court was delivered by
CASE, J. Plaintiff, the daughter-in-law of the defendant, sued upon a contract between plaintiff and defendant wherein the latter undertook to pay certain moneys for the maintenance of plaintiff and her children if plaintiff's husband, William Robertson, Jr., son of the defendant, failed to make such payments in accordance with the terms of another agreement of the same date between plaintiff and her said husband. The judge, sitting without a jury, gave judgment to the plaintiff and defendant appeals.
Appellant's contention is that the contract between husband and wife is void and that in consequence the contract of guaranty now sued upon is of no effect. The contention that the contract between plaintiff and her husband is void depends upon the common law doctrine that husband and wife cannot contract with each other, at least without the intervention of a trustee, because, in contemplation of law,
they are but one person. Respondent admits that that agreement is unenforceable in a court of law but contends that an agreement for maintenance is enforceable in equity and therefore cannot be considered void in any sense of the word. Without conceding that a contract for maintenance is enforceable as a matter of strict right even in a court of equity, we note that there is nothing novel in the proposition that a transaction between husband and wife may be enforceable in equity and yet void at law. Woodruff v. Clark and Apgar, 42 N.J.L. 198; Lister v. Lister, 86 N.J. Eq. 30. It may also be observed that alimony is a subject specifically committed to the Court of Chancery. Apfelbaum v. Apfelbaum, 111 Id. 529. But these statements of the law do not dispose of the case.
The facts went to the trial court in a brief stipulation, included with which were several documentary exhibits. Amongst the latter were Exhibit P-1, the contract between the plaintiff and her husband, made May 26th, 1930, and Exhibit P-2, the contract sued upon, made on the same day between the plaintiff and the defendant.
If we adventure upon the paths of surmise, we may guess that the several agreements anticipated a divorce proceeding and that there have been such a proceeding and a decree therein. But an assumption that there is or has been a divorce proceeding would be pure conjecture, not stated or referred to in the stipulation, not presented in the briefs, and mentioned now only to emphasize that we are not passing upon the application of the law to such a state of facts. So far as appears the moneys sued for are the weekly payments accruing for the support of Mrs. Robertson and the children of the marriage during the absence of the husband of Mrs. Robertson and the father of the children, William Robertson, Jr., under a written promise by him to pay and also under a separate agreement, with a separate consideration, made under seal, between appellant as party of the first part and Mrs. Robertson. The latter agreement includes these words:
"Now, therefore, the party of the first part (viz., appellant herein) in consideration of the premises and of the execution of the aforesaid agreement by said Dorus C. Robertson and of the sum of One Dollar ($1.00) by her to him in hand paid, receipt whereof is hereby acknowledged * * * does hereby covenant and agree to and with said Dorus C. Robertson that if said William Robertson, Jr., shall fail to make any payments of money as set forth in said agreement covenanted by him, then and in that event, the party of the first ...