Wolf v. Fox

Vinje, C. J.

The verdict is vigorously assailed by appellant because it finds that plaintiff entered into the marriage with Fox in good faith. The principal grounds for the argument are that the parties entered into a civil contract of marriage before a notary public and witnesses and were not married in the usual manner; that she had had exhibited to her the decree of divorce which Mr.. Fox had secured from his first wife, which decree was one from bed and board and not an absolute one, and that she had been told by the former wife and daughter that she was living in adultery with Mr. Fox.

Since the law recognized as valid a civil contract of marriage at the time this was entered into (Becker v. Becker, 153 Wis. 226, 140 N. W. 1082), it cannot be held error for the jury to find that there was nothing suspicious or wrong in entering into a lawful contract of marriage. The claim that since plaintiff saw the judgment for divorce from bed and board she must have known it was not an absolute divorce as Mr. Fox represented it to be is not *371 persuasive. Were she a party to the instrument or. versed in law the claim would rest upon more substantial grounds. But she was neither. It is true the instrument concerned her vitally, but' she may well have believed that it was an absolute divorce. It recited that it was a divorce “from bed and board forever/’ and she may well have thought that that was the correct legal phraseology for an absolute divorce. She testified that at the time she married Mr. Fox she did not know there were different kinds of divorce judgments ; that she first learned that fact after his death. In Thomas v. Thomas, 88 Wis. 88, 59 N. W. 504, it was held that a woman was not chargeable with knowledge that a decree of divorce obtained without the requisite period of residence in the state was void. Upon the evidence we think the jury were warranted in holding that she did not know the legal effect of the divorce from bed and board, and she was not under the circumstances, as a matter of law, chargeable with knowledge thereof.

The claim that plaintiff was informed that she lived in adultery with Mr. Fox rests upon conflicting testimony, and we cannot disturb the jury’s conclusion as to where the truth lies.

The question presents itself whether or not the plaintiff under the verdict rendered is entitled to recover for services and rent of house.

Courts are practically unanimous in holding that when a woman voluntarily and knowingly lives in illicit relations with a man she cannot recover- on an implied contract for services rendered him during the period of such relationship. 29 L. R. A. n. s. 787. Some courts hold that she can recover on an express contract if it does not form a part of the agreement for illicit relations. Ibid. On the question here presented as to whether, a woman, who in good faith believes she is married to a man when she is not, owing to his fraud or to a mistake of fact, can recover for services rendered him during the supposed marriage, the *372 courts do not agree. Massachusetts holds that she cannot, on the ground that since no compensation was contemplated by the woman or. by the parties the law can imply no agreement to pay. Robbins v. Potter, 11 Allen (93 Mass.) 588; Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892; Ogden v. McHugh, 167 Mass. 276, 279, 45 N. E. 731. Other courts hold that she can recover on an implied contract when she in good faith believes herself to be his wife. Higgins v. Breen, 9 Mo. 493, 497; Sanders v. Ragan, 172 N. C. 612, 90 S. E. 777, L. R. A. 1917B, 681; 29 L. R. A. n. s. 788; Keenan, Quasi-Contracts, 682. The latter holdings are based on the ground that, since his estate has been enriched at her expense, equity demands that she shall be made whole. The doctrine of assumpsit is applied. It is inferred from the nature of the transaction, and the supposed husband is held to have assumed to pay because in point of law and equity it is just that he should pay. We think the latter doctrine is the more just and logical and adopt it in this case. Here it is found that the supposed husband by express fraudulent representations induced plaintiff to enter into the illicit relation. It is therefore just and equitable that his estate should reimburse her for the actual money value she has added thereto. Whether the court would so hold in a case where both parties in good faith, but mistakenly, entered into a marriage need not now be decided.

There can be no question but that an action based on the implied promise to pay for services and rent survives and that the statutes of limitation do not bar the claim for the last six years. That is all the court allowed.

By the Court. — Judgment affirmed.