Summary
Appeal from a judgment of the. Appellate Division of the Supreme Court in the first judicial department, entered February 2, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict directed by the court.
The nature of the action and the facts, so far as material, are stated in the opinion.
There is no presumption of a consideration for the contract sued upon arising from the character of the instrument. (Bender v. Been, 78 Iowa, 283.) The fulfillment of an engagement to marry, subsisting at the time the instrument was executed, could not be a sufficient consideration for the promise of a third party to pay money. (Pollock on Cont. 161; Vanderbilt v. Schreyer, 91 N. Y. 392; Robinson v. Jewett, 116 N. Y. 40; Kramer v. Kramer, 181 N. Y. 477; 2 Parsons on Cont. 437; Leake on Cont. [6th ed.] 444; Cobb v. Cowdery, 40 Vt. 25; Conover v. Stillwell, 34 N. J. L. 54; Wescott v. Mitchell, 95 Me. 377; Ayers v. C., R. I. & P. R. Co., 52 Iowa, 478; Ellison v. Jackson Water Co., 12 Cal. 542; E. H. M. Co. v. Pringle, 41 Neb. 265.) The instrument sued upon is not supported by any consideration and is, therefore, not an enforcible contract. (Sarasohn v. Kamaiky, 193 N. Y. 203; Kramer v. Kramer, 90 App. Div. 176; 181 N. Y. 477; Johnston v. Spicer, 107 N. Y. 185; Borland v. Welch, 162 N. Y. 104; Phalen v. U. S. Trust Co., 186 N. Y. 178.)
The instrument made and executed by defendant on January 16, 1902, is a marriage settlement and the meaning and legality of its provisions should be construed and measured by the rule governing marriage settlements. (Dickenson v. Seaman, 193 N. Y. 18; Gorham v. Fillmore, 111 N. Y. 251.) The promise of the defendant is a binding contract and is amply sustained by valid considerations: (a) The consummation of the marriage with his daughter; (b) the mutual and reciprocal promise of his wife. (Sarasohn v. Kamaiky, 193 N. Y. 203; Phalen v. U. S. T. Co., 186 N. Y. 178; Kramer v. Kramer, 90 App. Div. 176; Buchanan v. Tilden, 158 N. Y. 109; Borland v. Welch, 162 N. Y. 104; Bouton v. Welch, 170 N. Y. 554; Peck v. Vandemark, 99 N. Y. 29; Schouler on Domestic Relations, § 178.)
(concurring). I concur for affirmance and agree with what Judge Cardozo has said about the law of consideration, but I prefer other "reasons for my conclusions in this case.
Marriage settlements are usually made between husband and wife; but marriage settlements by third parties have been recognized by law. (Schouler’s Dom. Bel. [5th ed.l 440 sec. 178; Phalen v. U. S. Trust Co., 186 N. Y. 178.) The policy of the law to uphold and enforce such contracts is applicable to both classes.
Count Gulinelli and the defendant’s daughter being engaged, the defendant, through his lawyer, prepared and executed the agreement in question on the 16th day of January, 1902, and handed it to his prospective son-in-law on the 18th of January, 1902. Two days thereafter Gulinelli and the defendant’s daughter were married. This formal document reads in part as follows:
“ Whereas, Miss Blanche Josephine Schweizer, daughter of said Mr. Joseph Schweizer and of said Mrs. Ernestine Teresa Schweizer, is now affianced to and is to be married to the above said Count Oberto Giacomo Giovanni Francesco Maria Gulinelli.
“ Now, in consideration of all that is herein set forth the said Mr. Joseph Schweizer promises and expressly agrees by the present contract to pay annually to his said daughter Blanche, during his own life and to send her, during her lifetime, the sum of Two Thousand Five Hundred dollars, or the equivalent of said sum in Francs, the first payment of said amount to be made on the 20th day of January, 1902.”
The only reasonable inference to be drawn from these facts is that this agreement was a marriage settlement made by the father upon his daughter in view of the impending marriage and to take effect upon the marriage. The marriage having taken place, the settlement became binding.
In the Phalen Case (supra) it was said by this court: “ The strict legal definition of consideration need not here be discussed, since marriage settlements have always been regarded as exceptions to the general rule upon this question.” (p. 186.)
If, however, consideration were necessary for this (marriage settlement, the marriage was that consideration.
441 The parties were not bound by the recitals in the instrument, but could show, by surrounding circumstances and by the natural inferences, the actual consideration. (10 Ruling Case Law, 1042; Barker v. Bradley, 42 N. Y. 316, 320; Wheeler v. Billings, 38 N. Y. 263, 264; Arnot v. Erie Railway Co., 67 N. Y. 315, 321; Ferris v. Hard, 135 N. Y. 354, 363; Sturmdorf v. Saunders, 117 App. Div. 762; affd., 190 N. Y. 555.)
This case is similar to Coverdale v. Eastwood (L. R. 15 Eq. 121); Laver v. Fielder (32 Beav. 1); Keays v. Gilmore (Irish Rep. 8 Eq. 290); Bold v. Hutchinson (20 Beav. 250), and Ayliffe v. Tracy (2P. Wms. 65).
Romilly’s words in Laver v. Fielder (supra) are pertinent here. “ It is of great importance that all persons should understand, that when a man makes a solemn engagement upon an important occasion, such as the marriage of his daughter, he is bound by the promise he then makes. If he induce a person to act upon a particular promise, with a particular view, which affects the interests in life of his own children and of the persons who become united to them, this Court will not permit him afterwards to forego his own words, and say that he was not bound by what he then promised.”
The trial court to whom all the facts were submitted was justified in finding that this agreement was a marriage settlement'by a father upon his daughter and that it influenced or induced the parties, at least in part, to marry at the time they did and was, therefore; a legal agreement.
Hiscock, Ch. J., Cuddeback, Pound and Andrews, JJ., concur with Cardozo, J., and Crane, J., concurs in opinion; Collin, J., not voting.
Judgment affirmed.
