Opitz v. Hayden , 17 Wash. 2d 347 ( 1943 )

The right of action for recovery for alleged seduction of March, 1920, was long since barred by the three-year statute of limitations (Rem. Rev. Stat., § 159 [P.C. § 8166]) when the contract of May 8, 1934, was executed; hence, there was no valid consideration for the contract. In Gates v. Shaffer, 72 Wn. 451,130 P. 896, we held that the statute of limitations begins to run against a female's right to maintain an action for her own seduction from the time she arrives at the age of twenty-one years. Respondent claims she was seduced in 1920 when she was twenty years old. The statute commenced to run in 1921 and the action was barred in 1924, three years later.

There certainly was not any seduction after 1924. Respondent discontinued intercourse with Anderson in 1926 and went to Portland, but later resumed illicit relationship with him. Whether the three-year statute runs from 1924 or 1926 is not important, as the contract was executed ten years after the tort of 1920 was barred in 1924, and eight years after discontinuance of relations in 1926.

A promise or a contract to pay a claim contrary to public morals is unenforcible. An agreement or contract to compromise, rather than to litigate, a claim which is contrary to public morals is on the same plane, and for the same reason is not enforcible. The promisor may disregard such promise.

A contract to pay will not remove the bar of the statute of limitations after the statute has run against an action in tort. An action for tort, once barred by the statute of limitations, cannot, like an action arising out of contract, be revived either by an express or implied agreement. The announced reason for the rule is that, while in cases of assumpsit an acknowledgment amounts to a new promise, it would be absurd to hold that in cases of tort an acknowledgment amounted to a new tort. Nelsonv. Petterson, 229 Ill. 240, 82 N.E. 229, 11 Am. Eng. 178, annotation, 180, 13 L.R.A. (N.S.) 912, annotation, 914.

If the consideration for the contract was the past illicit relationship continued from 1920 to 1933 (for which services respondent regularly each month received cash payment from Anderson), in the hope or on the promise of Anderson's divorce from his first wife and his marriage thereafter to respondent — those are the facts — the contract is void, as it is in violation of the marital duty, and is contrary to morals and public policy. Jones v. Allen, 14 Wn.2d 111, 127 P.2d 265. See, also, 13 C.J. 461; Williston on Contracts (Rev. ed.), § 148; and Olson v. Saxton, 86 Ore. 670,169 P. 119.

"So it is held that a promise to pay a woman on account of cohabitation which has ceased, even though the defendant has seduced the plaintiff; . . . is invalid." Williston on Contracts (Rev. ed.), § 148.

That the contract of May 8, 1934, was obtained and induced by oral threats in April and May, 1934, cannot be gainsaid. Anderson's lawyer and respondent's lawyer conferred respecting her demand for a settlement. The only reasonable inference deducible from the execution of the alleged contract of May 8, 1934, was that Anderson, in consideration of respondent's forbearing prosecution of the action — an agreement on the part of respondent to forbear to do an act which she had no legal right to do — promised to pay respondent as alleged by her. Her agreement to forbear instituting and maintaining the action could not constitute a sufficient consideration for the promise of Anderson. To constitute forbearance a good consideration for a promise, there must be a legal right forborne; for, if the claim is illegal, forbearance is worthless. Annotation, 25 L.R.A. (N.S.) 303.

It is true that the law favors the amicable settlement of claims. It should be borne in mind, however, that compromise is an agreement; and, if the consideration for that agreement is void, the courts will not lend their aid in enforcement of the contract.

Hutchinson v. Mt. Vernon Water Power Co., 49 Wn. 469,95 P. 1023, cited to sustain the majority opinion, involved the compromise of a water right controversy and was not in the nature of an illegal claim out of which no cause of action can arise in favor of the person asserting it. Our conclusion in the case cited had to do only with the claim which did not involve moral turpitude. The authority cited is not in point. There is a distinction between the compromise of a claim respecting property and the compromise of a claim involving moral turpitude of fundamentally illegal contracts. In the note toArmijo v. Henry, 14 N.M. 181, 89 P. 305, 25 L.R.A. (N.S.) 275, 310, the rule is stated respecting the effect of the compromise of property claims and the following statement is then made:

". . . provided, always, the contract is not illegal and void because violative of a statute or contrary to public policy. Examples of such illegality are compromises and settlements of gambling debts, and claims arising out of illicit trade in intoxicating liquors. The extreme case of an illegal and void compromise is an agreement to compound a felony. It is so universally and with such unanimity admitted that such contracts, in every possible guise, are absolutely void, ab initio adfinem, that to cite cases in point would be mere affectation of learning."

A compromise, like other contracts, requires, among other things, a consideration. 11 Am. Jur. 248, § 3.

"Like all other contracts, a compromise must be supported by a consideration. Moreover, the consideration for a compromise must not be against public policy." 11 Am. Jur. 264, § 18.

We agree with counsel for respondent, and the citation of sustaining authority (11 Am. Jur. 249, § 4), that to prevent the compromise of claims by compelling adjustments of all controversies by litigation in court, is against public policy. We have already stated the distinction between the compromise of a claim involving moral turpitude and the compromise of a claim regarding property.

While there is no legal inhibition against paramours making agreements with each other — such as the payment of one's paramour for her services as house-keeper — an agreement like the one in the case at bar is so infected by the illegality of the relationship and the consideration of that contract or compromise being against public policy, the contract is void. 15 C.J.S. 727, § 10, p. 760, § 38; annotation, 17 A.L.R. 1311; In re Greene,45 F.2d 428; Locke v. Pembroke, 280 N.Y. 430,21 N.E.2d 495.

I concede that Anderson was a roue and that, morally, none could be baser than he. I am convinced by my examination of the record — especially the sadistic, filthy sex letters of respondent to her lover, to whom she could not make her favors legal while he was married to another — that I would be exceptionally credulous, or as pure of thought and action and as chivalrous as the Knights of the Round Table were reputed to be, if I believed that respondent was a simple village maiden who surrendered her honor to Anderson. She was aware of the social jeopardy and physical risk attendant on sexual congress with a man who admitted to her that he was a libertine and had another paramour when he initiated his campaign to storm the citadel of virtue. Admittedly, she was conscious of the fact that such illicit relationship constituted a breach of the moral code.

If she was a child in sexual affairs in 1919, she manifested exceptional precocity or cunning in withstanding for six or seven months the importunities of Anderson until she obtained from him a promise that as soon as he was financially able he would procure a divorce — a covenant of adultery — from his wife and marry respondent, and retained his letters for future use as evidence, although she neglected to keep a daily diary of their libidinous conduct. If she had a virtuous mind — she had religious training, was not mentally weak and, doubtless, was endowed by the Creator with a conscience as well as with complementary attractions of her sex — it would have ever been, as the author Harrison writes, "attended by a strong siding champion, conscience."

She was not a target without armor. Propinquity of the sexes, one a libertine forty years old, cannot excuse the other's (a twenty-year old virgin mentally, morally, and physically equipped as was respondent) interference with the marital relation of the male even on the plea that their mutual love sanctioned, sanctified their meretricious relationship. Conceding, solely for the sake of argument, that she was the pursued and not the pursuer for the period of six or seven months prior to her alleged seduction, the record is clear that thereafter she was as possessive and as amorous as he in this ill-starred romance. Without armor? She had an invulnerable wall of defense: she possessed a conscience, a sense of right, but its still small voice she would not heed. Her conscience (the strongest of all champions), had she permitted, would have been victorious in the contest for the citadel which underwent a siege for only six or seven months before it was breached.

Inexcusable illicit pleasure, the evil bait by which admittedly respondent was caught as fish by a hook, can have no fellowship with virtue; it could not have dulled or blinded her mental vision sufficiently long to have enabled the roue to have breached the citadel had she not given her conscience a vacation. The vice of illicit intercourse could not attain the rank of virtue simply because respondent deemed mutual love of the paramours sanctioned their unholy lust.

Excusatory of continuance of life of shame as Anderson's mistress for thirteen years at one hundred dollars monthly when, undoubtedly, she was convinced during most of that period of years that Anderson would not divorce his wife to marry his paramour, she says "I had to live." That is not a valid justification of her conduct any more than Benedict Arnold's excuse for attempting to betray his country. He, too, thought he "had to live"; socially ambitious and financially embarrassed, he accepted a bribe, thereby selling his soul, not his country. Judas Iscariot thought he "had to live," so he deserted for a monetary consideration what he thought was a lost cause.

There is no legal or moral warrant for affirmance of the judgment, which should be reversed and the cause remanded with direction to the trial court to dismiss the action except as to the note representing legacy from her deceased father's estate which respondent loaned to Anderson.

MALLERY, J., concurs with MILLARD, J.