Walraven v. Jones — 6 Del. 355

Majority

p. 355

Mary Walraven v. Thomas C. Jones, Administrator of George C. Frank, deceased.

Headnote

If a woman enter into an express contract to cohabit and live in a state of fornication with a man, the immorality of the consideration will vitiate the contract, and no action will lie upon it; and in an action for work and labor as a servant in his family, if it be proved that she lived and cohabited with him as his mistress and concubine, the law will imply no contra'ct or promise to pay for her services.

Assumpsit for work and labor, with the usual pleas. The proved account of the plaintiff against the deceased was for work and labor, as a domestic servant in his household, for a period of twenty-seven years, four months, and twenty days, commencing in' 1828, and continuing up to the time of his death, at $3 per week, amounting to $4272, subject to a credit of $750; and she proved that she had performed service as such in his family during the whple of that period, and that the deceased had several times declared, and a short time before his death, that he had provided for her in his will,—that he had left the farm on which he lived, worth ten or twelve thousand dollars, to her for her life, and after her death to her son George in fee simple, and that it was not enough for her, so faithful and attentive had she been to his interests and his wants; hut no will of his could he produced after his death.

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The evidence for the defendant was, that at the time when the plaintiff first entered the service of the deceased, if she ever was in his employment as a domestic servant, on wages, he was a married man, and had a wife and several children living with him in his family, and that an improper intimacy existed between him and the plaintiff, which resulted in the birth of a child by him, in his house, before his wife left it and went to reside with a married daughter in Philadelphia, and after she left, the plaintiff continued to live with him and to conduct his household affairs, giving .birth to another son by him in 1830, both of whom the deceased always recognized as his children, and maintained and reared up as such on the farm with him on which they lived, and that she had continued to live and cohabit with him as his mistress and concubine ever since, up to the time of his death.

Mc Caulley, for the plaintiff:

The tenor of the evidence adduced on the part of the defendant sufficiently discloses the nature of the defence on which he relies, but he should insist, notwithstanding the character of that proof, that when one person performs work and labor for another, by his request, or with his consent, unless they were near relations, or it was understood between them that no compensation was to.be demanded or paid for it, the law im-. plied a contract and promise to pay for the work and labor; and the fact that the parties lived together in a state of illicit intercourse and cohabitation, did not in law preclude the right of the plaintiff to recover for such services upon the implied promise to pay for them. As to the plea of the statute of limitations, it was a settled rule in this State, that a slight acknowledgment of the existence of the debt was sufficient to take tile case out of the operation of the statute.

Patterson, for the defendant:

It was the object of the law to protect persons in the enjoyment and recovery of their just rights, hut it would not sanction' or enforce an

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immoral contract. Ex iurpe causa, non oritur actio, was the maxim that applied in this instance, and if the jury were satisfied that the plaintiff and the deceased lived in a state of unlawful cohabitation, during the time of the alleged services for which she had sued his estate, the law would not permit her to recover for them, even if they were proved to have been performed to their entire satisfaction.

James A. Bayard, on the same side:

The facts proved clearly established an immoral relation subsisting between the plaintiff and the deceased, George C. Frank, in his lifetime, and that she resided as his acknowledged mistress or concubine in his family during the whole time she lived with him, and during the whole period covered by her alleged services. But was the fact proved, that she had had a will drawn for him, by which he was to give all his property in Delaware to her children by him, which was equal to his property in Philadelphia, which was by the same will to go to his legitimate children, at all consistent or reconcilable with the idea that she wot in his family as a servant merely, on wages, at any price whatever ? As to the general principle in regard to services rendered by one to another, unless in the case of near relations, the law presumes that they were rendered in virtue of an agreement between them for that purposeror in other words, the law implies a contract and promise to pay for them. But such was not the case, if the contract was vitiated or in any manner affected by an immoral consideration, and even if part of the contract was illegal; as, if it was a part of the condition of her service that she was to cohabit with him, it fvill taint the whole and defeat the action. 27 Eng. C. L. R. 534. If a woman expressly agrees to serve a man and cohabit with him, the contract is void, and no action will lie upon it: 20 Eng. C. L. R. 508; 41 Idem, 322; and, a fortiori, if the plaintiff relies on an implied contract to recover, and it is shown that, in addition to the service, the plaintiff cohabited as a concubine with the party sought to be charged for the service, the law

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will not imply any contract to pay for the service, because it is vitiated by the immoral relation subsisting between them. TsTo acknowledgment of a subsisting demand, such as had been uniformly required under the ruling in this ■ State, had been proved, to take the case out of the operation of the statute of limitations.

McCaulley, in reply,

would admit that an express contract for cohabitation was void; and would also admit that, where it was a part or one of the conditions of an express contract for service, the rule was the same. But such was not the proof in this case. In the absence of any express contract, however, either in relation to the cohabitation or the service, indebitatus assumpsit will lie for the work and labor performed, on the implied promise to pay for that; notwithstanding it may be shown that the plaintiff, ■ in addition to the service, in point of fact did cohabit with the defendant, for which, however, no demand is made, and no cause of action is asserted in the case; for the cohabitation being no part of the contract, or of the consideration for it, will not taint or vitiate the implied contract to pay for the service merely.

The Court,

charged the jury: You are already aware that this action, ordinarily called an action of assumpsit, was instituted by Mary Walraven, the plaintiff, against Thomas 0. Jones, the administrator of George 0. Frank, deceased, with the view of recovering compensation for services alleged to have been rendered by her, as a hired woman or servant to the deceased, in his lifetime, commencing on the 14th of January, 1828, and running down to the 4th of June, 1855, covering a period of twenty-seven years, four months, and twenty days, at $3 per week, amounting in the aggregate to the sum of $4272.66, subject to a credit of $750.

To the plaintiff’s claim, the defendant, through his counsel, sets up three several and distinct matters of defence.

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1. That the plaintiff, Mary Walraven, stood in the relation of a mistress to George 0. Frank, and lived in a state of cohabitation with him, and is not, therefore, entitled to recover for services rendered during the continuance of such connection, because of the immorality and illegality of the relation in which they lived. 2. That the money which she acknowledges already to have,received amounts to inore than her services were worth. And, 3. The act of limitations.«

The first branch of the defence renders the relation in which these parties, Mary Walraven and George C. Frank, stood to each other, a very important fact to be determined by you in the .consideration of this case.

If she lived with him in the character and capacity of a hired wom^n or servant, for the purpose of performing the ordinary and legitimate duties and service^ of a house girl or servant, and did actually perform such services in and about his house, the law implied a . contract, and raises a promise, on the part of George 0. Frank, to pay her what her services were reasonably worth. In the absence of any express contract, the law presumes such a contract, and implies' a promise to pay, from the fact that services were rendered.

If the jury should be ‘of opinion, therefore, from the evidence in the cause, that the plaintiff lived in and about the house of George C. Frank in the character and capacity of a hired woman or servant, and as such rendered services to him, she is entitled to recover a fair and reasonable compensation for them, to be ascertained by you from the evidence in the cause; but in estimating these services, you will consider the payment or credit of $750, which she acknowledges to have received; having regard, however, to what I shall hereafter say to you in reference to the statute of limitations, which is relied on by the defendant as a distinct branch of defence, and as a bar to this action.

But if you should.be of opinion that the plaintiff, Mary Walraven, did not live with George 0. Frank in the char

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acter and capacity of a hired woman or house servant, but that she lived there as his mistress, in a state of cohabitation with him, the law—which discountenances^ immorality in all its forms and phases, and especially of such a character as that which is attributed to these parties—refuses its sanction to any undertaking founded upon an immoral and illegal consideration, and will not, therefore, presume a contract in the absence of an express one; nor, indeed, would it enforce an express 'contract founded upon such an immoral and, consequently, illegal consideration.

If, therefore, the plaintiff stood in the relation of a mistress to George C. Frank, and not as a hired woman or servant, she is not entitled to recover, although she may have rendered services in and about his house.

Every contract, whether it be express or implied, must have a valuable and legal consideration; and the policy of the law, which holds all contracts, either express or implied, based upon immoral considerations, null and void, is founded in good sense and wisdom. Hence it is that services, rendered by a hired servant, constitute a good consideration to support an action for the value of the services, upon an implied contract, in the absence of an express one, upon proof of the service; and that the consideration of a woman’s living with a man as his mistress, in a state of cohabitation with him, is not a sufficient consideration to support an action for services.

These are the principles of law applicable to the case, and it is now for you to apply the law, as we have announced it to you, to the facts, and then, determine in what relation the plaintiff lived with George 0. Frank. If she lived with him in the character and capacity of a hired woman or servant, she is entitled to recover such compensation as her services were reasonably worth. But if she lived with him as his mistress, in a state of eo- \ e habitation with him, she is not entitled to recover anything, either upon an express or implied contract; for, as I have before said to you, the law does not recognize, but

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makes absolutely null and void all contracts tending to promote fornication and prostitution. •

If; however, upon a proper application of the facts proved before you, to the law as already stated, in your judgment she is entitled to recover, then the next matter for you to consider will be, for what length of time, and the amount. The time is to be measured by the act of limitations, and the amount, by the evidence in the cause of the value of the services rendered, and not barred by the act.

The statute of limitations applies to the whole period of time for which the services are claimed to have been rendered, except the three years immediately preceding the institution of the suit. But for any services rendered within those three years, the statute would not operate as a bar, and she would be entitled to recover, so far as the act of limitations is concerned, or in other words, if she is entitled to recover at all, such sum as the services so rendered were worth, over and above the $750, which she has, according to her own admission, already received; but if the amount which she has received is fully equal to, or more than the amount of the services rendered within the three years, then she is not entitled to recover anything.

You will perceive now, gentlemen, that the plaintiff’s right of recovery depends entirely upon the relation in which she stood to George 0. Frank. If in that of a hired woman or servant, she would be entitled to recover something, provided she has not already received adequate remuneration, to be determined by the evidence and rules of law applicable to the case. But if she bore the relation of a mistress, and cohabited with him as such, she is not entitled to recover at all, and your verdict should be for the defendant.