Ryan v. Dockery

114 N.W. 820, 134 Wis. 431, 1908 Wisc. LEXIS 54

• Court: Wisconsin Supreme Court
• Decided: January 28, 1908
• Status: Published

Opinion

Winsnow, O. J.

We think that the court was entirely right in changing the answer to the second question of the verdict; but, as a verdict for the defendant should have been directed upon the undisputed evidence, neither this question nor tbe other detail errors claimed by the plaintiff are important.

One consideration alone disposes of tbe plaintiff’s claim adversely to bim. Tbe law requires a husband to support, care for, and provide comforts for bis wife in sickness as well as in health. This requirement is grounded upon principles of public policy. Tbe husband cannot shirk it, even by contract with bis wife, because tbe public welfare requires that society be thus protected so far as possible from the burden of supporting those of its members who are not ordinarily expected to be wage earners, but may still be performing some of the most important duties pertaining to the social order. Husband and wife may contract with each other before marriage as to their mutual property rights, but they cannot vary the personal duties and obligations to each other which result from the marriage contract itself. Schouler, Dom. Rel. (5th ed.)' § 171; 21 Oyc. 1242. It results from this that, when the plaintiff promised to care for, nurse, and support the deceased after marriage, he promised only to do that which the law required him to do in any event, and neither the doing of what one is in law bound to do nor the promising so to do is any consideration for another’s promise. 1 Page, Cont. § 311; Post v. Campbell, 110 Wis. 378, 85 N. W. 1035. The alleged promise of the decceased was therefore nudum pactum. The plaintiff simply performed duties required of him by law as a husband which he could not avoid or contract away, and there can be no recovery upon express contract, nor will the law imply a contract.

By the Court. — Judgment affirmed.