Summary
In Perreault v. Hall, 94 N.H. 191, 192, 49 A.2d 812, an employee had contracted to remain with her employer as business assistant and adviser, and "give her full attention to said [the] business by not becoming married."
Summary of this case from Cowan v. CowanOpinion
No. 3582.
Decided December 3, 1946.
A cause of action based upon an express contract may be described in different counts that vary in allegations of fact, and where such counts are improperly designated they may be amended. Special assumpsit is the proper plea in an action based upon an express contract. A contract agreement to pay stipulated sums of money in reliance upon the performance of certain services not described with sufficient definiteness and clarity as to make a valid and enforceable contract becomes binding by a subsequent acknowledgment of complete performance of such services. Legal consideration for a written promise to pay stipulated sums of money cannot be something which was given before the promise was made. In establishing a contract, a written agreement to pay certain sums of money is admissible as evidence of what the parties may have earlier agreed to but cannot be construed as a release or discharge of any previous agreement where such written agreement to pay, so far as appears therein, is without consideration. A contract for personal services that contains a provision in restraint of marriage as incidental thereto is valid if the provision is reasonable. A provision in a contract for personal services that the employee should not marry is valid if the restraint is intended to be limited to the term of employment, and not for the employee's life. A stipulation in a contract for personal services that if the employee should marry the contract would terminate one year after marriage, is not in restraint of marriage but merely contemplates the discontinuance of further payments to such employee.
ASSUMPSIT on an express contract for the continuation of services as forelady in a manufacturing enterprise with an agreement not to marry. The two counts of the plaintiff's declaration are substantially the same, although one is designated "in a plea of the case" and the other, as "based upon contract." The defendants' testator, Archer H. Fownes, purchased a paper box factory in Rochester in 1912, in which the plaintiff had been employed since 1895. She continued as an employee and in about four years became forelady in charge of all the girl workers, which position she held until her retirement, agreed to by both Mr. Fownes and herself, in May of 1937. The plaintiff alleged, in substance, that on or about July, 1929, and at other times the testator promised her that he would pay her well and enough so that she would be assured of a good living for the rest of her life, if she would remain with him as business assistant and adviser, give her full attention to said business by not becoming married and make no statements or claims against him relating to past happenings. It is alleged further that she agreed to do as requested. The declaration also states that in February, 1937, the testator wrote her acknowledging that she had worked as agreed and had never married as requested. On May 7, 1937, Mr. Fownes gave the plaintiff the following writing:
"Fownes Manufacturing Co. Manufacturers of Paper Boxes Rochester, New Hampshire May 7th 37
"In consideration of forty years of continuous service, twenty in charge of my box mfg. business, I agree to pay to Sadie Pearault of Rochester, twenty dollars ($20) per week as long as she lives, or until some other agreement is agreed on, the same to be given as a pension for continuous service. In case of my death the pension is to continue as long as there is sufficient income from my estate to take care of it. If a settlement for a single amount at one payment is made this document is to be returned and destroyed.
"If at any time this document is made public for any reason, except for the purpose of collection, or if at any time the beneficiary should make statements against the moral character of the signer of this document then it becomes null and void. If Miss Pearault should marry this contract ends one year after of marriage.
Signed Archer H. Fownes."
Mr. Fownes paid the plaintiff $20 a week from May 7, 1937, to the time of his death in July, 1943.
A motion to dismiss filed by the defendants was denied by the Court subject to their exception. All questions of law raised by said motion were reserved and transferred in advance of trial by Leahy, J.
W. H. Sleeper and O. J. Gregoire (Mr. Sleeper orally), for the plaintiff.
Cooper, Hall Grimes and Hughes Burns (Mr. Benjamin C. Chester orally), for the defendants.
The defendants argue that the plaintiff alleges inconsistent claims in her two counts. It is unnecessary to decide whether such a matter of abatement can be raised by a motion to dismiss. The counts are wrongly designated but may be amended. The first does not describe a tort action and is not a plea of the case. Each is based upon an express promise and accordingly is a count in special assumpsit. They are brought for the same cause of action. A cause of action may be described in different counts that vary in allegations of facts. Hitchcock v. Munger, 15 N.H. 97, 102. This is true even of counts in contract and tort based on a single cause of action. Crawford v. Parsons, 63 N.H. 438, 443.
It is not quite clear from the declaration just what were the promises of the plaintiff, if a bilateral contract is established, or the acts to be performed by her, if a unilateral contract is proven. However, no defense on the ground of indefiniteness of consideration can be made in view of the testator's positive admission in February, 1937, that the plaintiff had complied with his requests. "If, however, the side of the agreement which was originally too vague for enforcement becomes definite by entire or partial performance, the other side of the agreement (or a divisible part thereof, corresponding to the performance received), though originally unenforceable, becomes binding." 1 Williston, Contracts (Rev. ed.), s. 49, p. 139.
Recovery cannot be based on the writing of May 7, 1937, for it recites nothing to be given by the plaintiff in exchange for or in reliance upon the promises of said document. "Accordingly, something which has been given before the promise was made and therefore, without reference to it, cannot, properly speaking, be legal consideration." 1 Williston, Contracts (Rev. ed.), s. 142, p. 508. Wilson v. Edmonds, 24 N.H. 517, 546. If no agreement concerning the subject matter of the declaration in this case that is legally binding upon the parties was reached before May 7, 1937, then the defendants are entitled to a directed verdict. The writing of said date signed by the testator and accepted by the plaintiff is evidence of what the parties may have agreed to earlier either bilaterally or unilaterally. It is not a discharge or release of any earlier agreement since it is incomplete and not a binding contract. 17 C. J. S. 887; Connell v. Company, 88 N.H. 316.
It is impossible to say without the evidence of the facts whether the allegation "make no statements or claims against him relating to past happenings" is a statement of forbearance that is in and of itself alone sufficient consideration for a contract. No opinion is given concerning this in advance of trial.
The motion to dismiss raises the point whether the contract sued upon is not void because it is in restraint of marriage and so against public policy. All agreements against marriage are not illegal. A contract for personal services that contains a provision in restraint of marriage as incidental thereto is valid if the provision is reasonable. "The modern law regards bargains and conditions in restraint of marriage as only prima facie illegal and will accord them validity if the restraint is shown to be reasonable under the circumstances. For example, reasonable contracts involving the performance of services which are inconsistent with matrimony have been upheld." 6 Williston, Contracts (Rev. ed.), s. 1741, p. 4926. Restatement, Contracts, s. 581; 122 A.L.R. 19, 127; Gleason v. Mann, 312 Mass. 420; Fletcher v. Osborn, 282 Ill. 143; King v. King, 63 Ohio St. 363.
The term "reasonable" in the above statements of a valid agreement in restraint of marriage means that the provisions against marriage should be limited to the requirements of the main object of the contract. In the present case the provision that the plaintiff should not marry and so perhaps interrupt or put an end to the service of employment, should be limited to the term of employment, not last for the plaintiff's life. In Gleason v. Mann, supra, it was held that if the plaintiff's promise meant that she was never to marry unless she married the defendant, it would impose a general restraint upon marriage that would be void, and that under such circumstances she could not recover.
The stipulation of the writing of May 7, 1937, "if Miss Pearault should marry this contract ends one year after of marriage," if it should be found to be a provision of a contract between the parties, is not in restraint of marriage. It contemplates merely the termination of the pension from Mr. Fownes one year after marriage, which ordinarily would provide at least an equivalent support. Lewis v. Johnson, 212 Mo. App. 19.
The exception of the defendants is overruled.
Case discharged.
All concurred.