#### Ryan, Appellant, vs. Dockery, Administrator, Respondent

*January 10*

January *28, 1908.*

*Appeal and error: Review: Questions considered: Immaterial error: Husband and wife: Obligations arising from marital relation: Contracts for personal services: Consideration.*

1. Where a verdict for the defendant should have been directed upon the undisputed evidence, errors alleged on the plaintiffs appeal from the judgment are unimportant.

*4322. The law requires a husband to support, care for, and provide comforts for his wife in sickness as well as health. Such requirement is grounded upon principles of public policy, and the husband cannot shirk it, even by contract with his wife.

3. 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.

4. "When a .husband promises to care for, nurse, and support his wife after marriage (she being before marriage a widow with some property and blind), he promises only to do that which the law requires him to do in any event, and neither the doing of what he is in law bound to do nor the promise so to do is a consideration for his wife’s promise to bequeath him her property.

5. Such promise of the wife is a *nudum pactum,*and hence where the husband filed a claim for the value of such/services against his wife’s estate, alleging such a contract, there can be no recovery upon express contract, and the law will not imply one.

Appeal from a judgment of the circuit court for Brown county: S. D. Hastings, Circuit Judge.

*Affirmed.*

The appellant, *Edward Ryan,*filed a claim in the county court against the estate of his deceased wife, *Eliza Ryan,,*for care, support, and nursing of said wife from the time of their marriage, August 4, 1900, up to the time of her death, February 28, 1905. The complaint as filed in county court was substantially upon *quantum*meruit, and the claim was allowed in that court at the sum of $1,000. The administrator appealed, and in the circuit court an amendment to the complaint was allowed by which it was alleged that just prior to the marriage of the parties and on the same day the deceased agreed with the claimant that in consideration of his services in caring for, supporting, and nursing her she would leave him all her property upon her death should he survive her, and that she failed to perform such promise, to the claimant’s damage in the sum of $1,750. It appeared on the trial that Eliza Ryan was a widow with a small property and living alone at the time of the alleged promise, and was blind, and conse*433quently in need of some one- to care for ter. The jury by special verdict found (1) that before the marriage a contract ■was made between the parties by which the claimant agreed to take care of, support, nurse, and see to the comfort of deceased during her life, , and the deceased agreed to pay therefor by giving him what property she might leave at her death for his use during his life; (2) that said agreement was not made as part of their contract to marry or as a consideration for the marriage; (3) that the support, nursing, and care was not such as the parties contemplated should result from the marriage relation; and (4) that claimant fully performed the contract on his part. TJpon motion the court held that the negative answer to the second question was wholly unsupported by the testimony and that said question should be answered in the affirmative, hut allowed the answer to the third question to stand. The court further held that as a part of the consideration was *Ryan’s*promise to marry the deceased, which was void because not in writing, the entire contract was void, but that it would serve to rebut the presumption that the services rendered were to be gratuitous. Hence the court concluded that there might be a recovery for the reasonable value of the services, but there being no proof as to what the services were worth, the claimant could recover only nominal damages and costs. Judgment in accordance with this conclusion was rendered, and the claimant appeals.

Eor the appellant there were briefs by *Kaftan & Reynolds,*and oral argument by *R. A. Kaftan.*

Eor the respondent there was a brief by *John F. Waier-molm,*attorney, and P. *H.*Martin> of counsel, and oral argument by *Mr. Martin.*

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 *434nor 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.