Thayer ex rel. Hall v. Thayer

OlabksoN, J. This case was before this Court — 187 N. C., 573 — on the question of venue. This is an action brought by an illegitimate child, under age, by his next friend, his mother, to enforce an alleged contract made by his mother to compel the reputed father to support and educate him. The jury found that the plaintiff, Carl Thayer, Jr., was an illegitimate child of Carl Thayer, who had contracted with Mamie 0. Hall, his mother, prior to his birth, to take care of and educate him. All the issues, as appear in the record, were found against defendant. The court below construed the complaint as alleging two causes of action: (1) To establish paternity (2) for breach of contract. The court below submitted the first issue as to paternity of plaintiff over objection and protest of defendant. But, the court held in the judgment, as a matter of law, that plaintiff could not maintain his cause of action embraced in the first issue. The plaintiff has not appealed. No appeal having been taken by plaintiff as to the first cause of action, if there was one under the pleadings, this case is res judicata. We think that on all the issues found against the defendant, the evidence was competent, and the charge of the court was in accordance with law. We will only deal with the law in reference to the second cause of action — “For breach of contract.” [505] The defendant contends that “As to the second cause of action the plaintiff alleges a contract made with his mother six months before he was born. Such a contract must be supported by sufficient or meritorious consideration. What consideration is there moving from the plaintiff in this-action to the defendant? None whatever. Love and affection for an illegitimate child is not a meritorious consideration for the reputed father.” The contention of defendant cannot be sustained, from the evidence of Mamie O. Hall (who was married to one Godwin last July), and to whose testimony the jury gave credence. She testified, in substance, that she had one child, Oarl Thayer, Jr., who was 11 years old — born 7 June, 1914. That she had known defendant practically all her life and they lived in the same vicinity and for years they went with each other. In 1913, the defendant had connection with her several times — more than four in the month of September and October. She had nothing to do with any other man, and was about 1.7 years old at the time. The plaintiff, Oarl Thayer, Jr., was born 7 June, after-wards, and the defendant is his father. “I next saw defendant in December, along about the 18th of December, at my father’s home. He came and talked with me about the child, and I told him my condition. He said he would take care of this child. Said he would marry me, and take me to Virginia where his work was next year, and I should not be left. He promised to marry me in 1913, when he found out my condition. He said, we will marry 23 December, and that he would take this child and take care of him. My mother heard him say this. That he Would support the child and care for .him and educate him comfortably. Defendant said, ‘You know my property is here, and my father is here and is old and I cannot afford to go away and leave you in this condition, and he said, Mamie, I love you, and cannot leave you, and will take care of you and the child with my property.’ This was before the child was born.” The entire evidence shows that after the agreement of defendant was made, the cohabitation ceased. Under the facts found by the jury, the single question presented here was the agreement supported by sufficient or meritorious consideration. At the time the promise was made, Mamie ,0. Hall (now Godwin) was with child. Defendant was the reputed father and promised to marry her, the marriage to take place 23 December. The child was born afterwards on 7 June. If this promise had been fulfilled, Carl Thayer, Jr., would have been a legitimate child. By both the civil and canon law the subsequent marriage of the parents legitimized their offspring born before marriage. 1 Black Com., 454; Fowler v. Fowler, 131 N. C., p. 169. He would have had inheritable blood. By Laws 1917, ch. 219, sec. 1, C. S., 279, subsequent marriage now makes the illegitimate child legitimate, with all the rights as if born in lawful [506] wedlock. At the time the promise was made, the law gave the mother certain rights, C. S., 267, and if under said section the paternity of the child was established “then be shall stand charged with the maintenance thereof, as the court may order, and shall give bond, with sufficient surety, payable to the State, to perform said order, and to indemnify the county, where such child is born, from charges for bis maintenance, and may be committed to prison until be finds surety for the same, and shall be liable for the costs of the issue or proceeding.” This is a civil action—Richardson v. Egerton, 186 N. C., 291. Defendant promised to do for tbe child what tbe mother could make him do under, tbe law — maintain him. Tbe promise made was to do this and further to educate tbe child. Under our school law, children of certain ages are required compulsorily to attend school. C. S., 5758. S. v. Johnson, 188 N. C., 591. There was nothing in tbe promise that was contrary to law or founded on an immoral consideration. It was a natural obligation. Consideration of marriage is a valuable consideration (although not alleged but in evidence, without objection), and-a consideration based on the right of the mother, under C. S., 267, to force by law maintenance. Defendant never fulfilled his promise of marriage, nor did he maintain and educate the child. The mother had to go through the agony of child-bearing, suffer the wrong. The marriage promise he failed to live up to would have helped cleanse the sin, but his failure has kept her sin ever before her. “For I acknowledge my transgressions and my sin is ever before me.” Ps. 51, v. 3. Carl Thayer, Jr., now asks that this contract on his behalf to maintain aiad educate him be carried out by the court. Defendant pleads nudum pactum — a promise without consideration, unenforceable. Under the facts and circumstances of this case, we cannot so hold. The promise was based on a sufficient and meritorious consideration. We think not only the weight of authority is with the plaintiff, but justice. No mortal can tell the mental and bodily suffering the young 17 year-old girl went through in the birth of this child, the disgrace, the alienation of friends and kindred. Defendant should fulfill his obligation to educate and maintain the child- — the wages of his wrong. Retribution has come after long years, but it has come — nemesis. “Retribution follows wrong Tho the execution tarry long.” The child is under age, and the statute of limitation not applicable. In Doty, Admr. v. Doty, Guardian, 118 Ky., p. 204, where a similar contract, as in the instant case, was upheld, the attorneys of appellee in their brief so well stated the equity of this case, as set forth in the [507] English case, tbat we repeat: “In England nearly two bnndred years ago one of tbe ‘nobility’ misled an innocent young woman and bad a son by ber. He lived witb ber for a little while, but afterwards married another woman. But before doing so be executed a bond in which be promised to give tbe boy at bis death $10,000 and died. Suit was brought upon bis bond by tbe mother for tbe boy in tbe high Court of Chancery, and a motion was made to dismiss it upon tbe ground, ‘that it being a matter of turpitude, equity would not meddle and should not lend assistance.’ Tbe lord Chancellor substantially said: ‘Turpitude consists in tbe doing of tbe wrong and 'not in making reparation.’ So we say, this is a case of doing justice — making amends for wrong done to tbe innocent. Justice is clean and appeals to tbe highest of all courts. To do justice — to make reparation for wrong done — requires tbe exercise of tbe highest function.of this Court, and tbat for which it was established. In tbat case tbe chancellor gave tbe mother judgment for tbe amount due tbe child, and tbe findings was approved by tbe House of Lords.” Nearly one hundred years ago, Taylor, C. J., in Kimbrough v. Davis, 16 N. C., p. 75, said: “Tbe natural obligation of a parent to maintain bis illegitimate offspring, cannot be doubted. (Puffend, 6, 4, ch. 11, sec. 6.) . . . ‘Past seduction (says Chancellor Kent) has been held a valid consideration to support a covenant for pecuniary reparation; and tbe innnocent offspring of a criminal indulgence, has a claim to protection and support, which Courts of Equity cannot and do not disregard.’ ” Brown v. Kinsey, 81 N. C., p. 245 and cases cited. Tbe Kimbrough case was cited and approved in Sanders v. Sanders, 167 N. C., p. 318: “There can be no controversy tbat tbe father is under a legal as well as a moral duty to support bis infant children (Walker v. Crowder, 37 N. C., 487), and, if be has tbe ability to do so, whether they have property or not. Hagler v. McCombs, 66 N. C., 345. There is a natural obligation to support even illegitimate children which tbe law not only recognizes, but enforces. Burton v. Belvin, 142 N. C., 153; Kimbrough v. Davis, supra.” “At common law tbe father is under no legal obligation to maintain bis illegitimate children, for as has been seen, in tbe eye of tbe common law, an illegitimate child has no father, but is regarded as nulius filius. But tbe father is liable on an express promise to pay for support and maintenance to be furnished to his illegitimate children (italics ours), and on an implied contract to pay therefor where be has adopted tbe child as bis own, and acquiesced in any particular disposition of it.” Tiffany’s Persons and Domestic Relations (2 ed.) p. 249. For tbe position, Mr. Tiffany cites Burton v. Belvin, 142 N. C., supra. In tbe note be says: “An agreement by a man to pay for tbe maintenance of [508] cbildren which may result from future illicit cohabitation is void, because of its immoral tendency. Clark, Cont., 439; Crook v. Hill, 3 Ch. Div., 773. But such an agreement as to children already born, or as to a child in ventre sa, mere, is valid; the illicit intercourse, in such ease being past. Clark, Cont., 439; Crook v. Hill, 3 Ch. Div. 773. The moral obligation of a father to support his illegitimate children is a sufficient consideration for his bond to do so. Trayer v. Setzer, 72 Neb., 845, 101 N. W., 989.” There are eases to the contrary, such as Nine v. Starr, 8 Oregon Rep., p. 49, holding there is no legal obligation, but there was no statute imposing a legal obligation, as in this State, requiring the father under the Bastardy Act to maintain the child, nor was there any promise to marry the mother. In fact, in Sponable v. Owens, 92 Mo., Appeal Rep., p. 174, there was a promise to marry (a valuable consideration) coupled with a promise to support the illegitimate child — similar to this ease. It is there held, p. 178: “The agreement to marry is not alone a consideration supporting an action for failure to marry, but it is a consideration upon which other lawful agreements may be based. It is not unlawful for a father to support, or agree to support, or agree to provide for the support of his illegitimate child; and no reason can exist why he should not be allowed to legally bind himself in a contract with the mother of the child. It is but necessary that there be a legal consideration, and we are of the opinion that an agreement between the two .to marry is sufficient.” The suit is properly brought. We said in Parlier v. Miller, 186 N. C., p. 503: “We deduce from the authorities that it is well settled that where a contract between two parties is made for the benefit of a third, the latter may sue thereon and recover, although not strictly a privy to the contract.” Bank v. Assurance Co., 188 N. C., p. 753. Defendant further contends: “This cause of action is brought for breach of contract and plaintiff’s proper remedy, if any he has, is for damages to be passed on by a jury and not the relief asked for in the complaint, nor the relief granted by his Honor.” We think by analogy to the action of the Court in Sanders v. Sanders, supra, p. 317, that the judgment of the court below was proper. The facts were established by the jury. On the entire record, we can discover in law, No error.