Central Law Journal.

ST. LOUIS, MO., JUNE 23, 1916.

RIGHTS OF CHILDREN IN DIVORCE PRO

CEEDINGS.

In 76 Cent. L. J. 109, there was treated the question "The Unconsidered Relation of Children to the Marriage Status of Their Parents." There it was urged that children should be regarded as not only having a vested right in such status that should entitle them to be made parties to any proceeding seeking either its dissolution or annulment, but that as they were the offspring of a contract relation entered into freely by their parents, marital rights should be deemed subordinate to filial rights. dren ought not to be prejudiced by the desire of parents to follow their roving fancies or, even, by the honest purpose to escape intolerable conditions.

Chil

We find in Houghton v. Houghton, 157 N. W. 316, decided by Supreme Court of South Dakota, a case which proceeds far enough to recognize the superior status of children of an ill-starred union, but it does not go as far as the above article suggests. As it was dealing, however, with rights of children under a statute, its liberality of construction in their favor presents views of a very creditable nature indeed.

It appears from this case that a divorce was granted between plaintiff and defendant in 1903. The ground of the divorce in favor of the wife was cruel treatment and to her was awarded custody of the children, the parties settling their property matters outside of court. There was an agreed sum paid to the wife for the support of herself and the children. The husband has paid practically nothing for the children's support since the divorce, but he has, from being worth at the time of the decree only $4,000, gotten to be worth more than four times that sum. The wife, by reason of ill health and the want of financial means

has become unable to support, maintain and educate the children.

This proceeding is by the wife, as supplementary to the original suit, to obtain an award for the benefit of the children, there being nothing said in the original decree on this subject.

The court refers to South Dakota statute providing for modification of any order made in the children's behalf, and it was urged that the decree being silent in regard to support of the children, there was nothing to modify.

The court said: "There is a fundamental difference between the position of divorced persons toward each other and the position of the children with relation to either or both of the parents. While the former husband and wife are no longer husband and wife, the relation of parent and child still exists between the mother and the children on the one hand, and between the father and the children on the other hand, even though the mother has their exclusive custody. In a divorce case the children are and continue to be virtually wards of the court. It is the welfare of the children that the court is concerned with, not the wishes of either of the parents, and we do now declare that parents are powerless to provide by irrevocable contract what the future financial liability of either shall be with relation to the support, maintenance and education of the children. The court has the power, and it is its bounden duty, to look after the welfare of the children when the matter is properly brought to its attention."

These are brave words, but their limitation to "future financial liability" introduces the weasel, recently referred to by a distinguished citizen, which sucks from the egg of a larger principle that should be noticed.

This larger principle is that nothing in the way of detriment, moral or material, to children ought to be deemed settled by a decree rendered in a suit to which the children were never made parties, though their interests were vitally affected.

Should not they have the right to ask courts not only for all the benefits that enhanced financial ability of either of their parents may bring, but even that, if it is for their benefit, the old relation should be resumed?

But it may be said, that permission to acquire another marriage status makes this an impossibility. But why allow remarriage, when a child's right to the continuance of a former marriage has not been adjudged by any proceeding in which the child was made a party?

Let us concede that this dissolution was decreed by virtue of the police power over marriage as a status, yet police power has no right to affect interests in that status, which have had no day in court. Does any legislation under the police power contemplate that this shall be done?

We regard marriage as a civil contract and the res thereof gives jurisdiction according to its location. But between whom is the contract? If there can be no irrevocable contract between parents so far as future financial benefits to children may be affected, why overlook the true benefits, future or past, a child, born to irrevocability arising out of the contract, possesses?

It seems to us that statute should not go half way in this matter. No divorce decree should by statute be allowed to be granted, unless a disinterested guardian ad litem be appointed to represent the child or children of a union and then it should be certified by the court in granting a decree that it is for its or their interests, that decree should be granted, and ample provision should be made for their support, with reservation that the decree might be opened up at any time in the future to this end. It is a barren civilization, which prates of children being the favorites of its courts, and yet allows their rights in home to be taken away at the pleasure of their discontented parents. Reference is made to a further illustrative case in the next succeeding page of this issue of the Journal.

NOTES OF IMPORTANT DECISIONS.

DAMAGES-PUNITIVE DAMAGES REDUCED BECAUSE COMPENSATORY ARE NOMINAL.-The Supreme Court of Arkansas recognizes the rule that there must be actual damages as foundation for the allowance of punitive damages. It states a new rule, however, that there must not be too great a disparity between the two kinds of damages, that is to say, that if the compensatory damages are small the punitive, must not be large, or they will be reduced nisi. Gordon v. McLearn, 185 S. W. 803.

This is a latitudinous rule the court makes for itself. There are so very many considera- . tions entering into the measure of punitive damages, that courts have endeavored to state that the only comprehensive rule to be formulated is, that all the circumstances are referable to the experience of the jury, guided by fairness and justice, to exclude passion or prejudice. If amount awarded is so very large or small as to shock a court's sense of justice some courts have thought there should be a new trial. But this idea has been shaded upon the theory that if a jury had not have been influenced by passion or prejudice they would have allowed something, though whether anything at all is allowed is exclusively for their consideration.

The law stands on an uncertain pedestal as to this, but we do not see, that the Arkansas rule helps much. In many cases indignities put on one may cause great humiliation, though actual injury may be very small. In other cases the actual injury may be great, and the humiliation much less severe. The court, in such announcement as the Arkansas court makes, seems to make a wholly arbitrary rule. This branch of the law somewhat resembles that of libel and slander, where recoveries are greatly measured by the jury's enlightened conscience.

COMMERCE-INDEPENDENT CONTRACTOR PERFORMING SERVICES FOR AN INTERSTATE CARRIER.-In Chicago, R. I. & P. Ry. Co. v. Bond, 36 Sup. Ct. 403, the Supreme Court holds, that, if services performed for an interstate carrier would bring an employe suffering injury therein under the protection of Federal Employers' Liability Act, they would be taken from under said Act

where performed for an independent contractor working for such carrier.

It is further ruled that the contract under which such services are performed cannot be regarded as an evasion of § 5 of such Act, which provides "that any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act shall to that extent be void." If a contract, that is to have, if valid, the necessary effect to exempt the carrier from such liability, is not to be deemed an evasion, this appears to overturn the rule, that intent to produce a certain result may be presumed, as matter of law, from knowledge that the means used will produce a certain result.

It is to be noticed, also, about this decision, that the court arrives at the conclusion from uncontradicted parol evidence, that the employer of plaintiff was an independent contractor, notwithstanding that the carrier reserved to itself the giving of "a certain direction to the company or, rather, we should say, information given to Turner (the contractor). But the manner of the work was under his control, to be done by him and those employed by him. He was responsible for its faithful performance and incurred the penalty of the instant termination of the contract for nonperformance."

Speaking of the written contract, it is said: "The whole instrument shows system and particular care. It is not the engagement of a servant submitting to subordination and subject momentarily to superintendence, but of one capable of independent action, to be judged by its results."

A contract might exhibit all of these features, but we imagine the way the work is actually done, in a contract claimed to be an evasion, ought to be a better guide, and, if this is shown by testimony of witnesses, the latter ought to be very clear indeed to take the question of the real nature of the contract away from the jury and make it a question of law. Of course, if a contract is explicit, the testimony might be looked at a little differently, than if the contract were somewhat ambiguous in its terms.

DIVORCE-CHILDREN'S

RIGHTS IGNORED.-As illustrative of editorial 82 Cent. L. J. 439, we refer to Scholl v. Scholl, 185 S.

W. 762, decided by St. Louis (Mo.) Court of Appeals.

In this case plaintiff husband filed suit for divorce and his wife interposed a cross complaint in which she also asks for the divorce, custody of the children and alimony for the support of herself and children. Plaintiff obtained the decree in the lower court with an allowance to defendant for maintenance and support of the children. There was reversal and award of divorce on the cross-bill and an increased amount of alimony for her and the children was allowed.

While heartily approving of all the Appellate Court says in criticism of the husband and his case, it yet stands out that the injured wife probably would not have sued had she not have been called into court by the husband. When we take into consideration the fact that Missouri law frees the guilty as well as the innocent party from the disabilities of marriage, on decree for divorce in favor of either party, it looks like the home of these children has been destroyed because of the act of a guilty party.

The real question, then, was a fight over costs and maintenance money, the rights of the children as to everything else being ignored. The opinion expends itself in giving reasons for a reversal of the judgment in favor of the husband, and does not touch at all on the evidence to support the cross-bill. From its frame, however, we judge, that the gravamen of her case was aversion by plaintiff's mother, and his niggardly conduct towards her. While being a good fellow with the boys and spending his money freely, he left his family unprovided for.

What a sight for the angels this controversy presents! Had the children been made parties to this suit under some appropriate statutory procedure and the court have been required to say their interests were protected by the decree, would the guilty father and the indignant, but innocent, mother both have been relieved from a relation, in which children acquired an interest in not only a lawful, but a righteous, way? A divorced party showing himself regardless of sacred duty to innocent offspring, ought to be regarded like an insane person, dangerous to the community at large, and his opportunity to do wrong should be clipped. Why not extend statutes preventing procreation to this kind of an offender?

An option to buy is merely the granting to the prospective purchaser of the privilege of in the future electing to and entering into a contract of purchase on the terms and conditions, and for the price, specified in the option contract; the word "option" being synonymous with "choice" or "preference," and is evidence of the intention to and of the actual conferring of a preference above all other persons.3 In other words, it is merely an offer to sell,* and in no proper sense or at all a sale, or an actual or existing contract of sale," but is simply a right or privilege granted or conferred upon the optionee, at his election and notice thereof, to enter into a valid and binding contract of purchase;" and where a future date is fixed in the option contract for its performance,—i. e., for election and notice on the part of the

(1) See Dodge v. Kiene, 28 Neb. 216, 44 N. W. 191.

(2) See Ross v. Bank of Gold Hill, 20 Nev. 191, 19 Pac. 243.

(3) Montgomery v. Handley, 205 Mo. 138, 94 S. W. 527; Levy v. Roth, 17 Misc. (N. Y.) 402, 39 N. Y. Supp. 1057. Use of the word "option" negatives the contention that the transaction was a sale.-Westcott v. Mitchell, 95 Me. 377, 50 Atl. 21.

(4) See McMillain v. Philadelphia Co., 159 Pa. St. 142, 28 Atl. 228.

(5) Hopgood v. McClausland, 120 Iowa 218, 94 N. W. 469; Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695.

(6) Hopgood v. McClausland, supra; Ide v. Leiser, supra; Clark v. American Devel. & Min. Co., 28 Mont. 468, 72 Pac. 978. "There is a distinction between an 'option ' to purchase, which may be exercised or not by the prospective purchaser, and an absolute contract of sale, wherein one of the parties agrees to sell and the other to buy certain property, the sale to be completed within an agreed time."-Clark American Devel. & Min. Co., supra.

V.

(7) See Schleider v. Dielman, 44 La. Ann. 462, 10 So. 934; Rivers v. Oak Lawn Sugar Co., 52 La. Ann. 762, 27 So. 118; Litz v. Goosling, 93 Ky. 185, 21 L. R. A. 127, 19 S. W. 527; or as a recent writer tersely puts it, an option is a contract whereby the grantor sells to the grantee the right, at the election of the latter, to purchase certain described property, for the price and upon the terms and conditions of the option contract.-James on Option Contracts, § 101.

enter into a contract of sale and purchase, upon the terms and conditions, and for the price, specified in the option contract.

An option contract is a pollicitation," a mere promise without concurrence of inten-. tion or mutuality.10 To raise mutuality and make a binding contract there must be an election and notice thereof to the optionor by the optionee, and an unqualified acceptance of the offer on its terms and conditions," and this must be done within the time limited in the option contract, for time is of the essence of such contracts.12

In the case of a simple offer—that is, a promise without any consideration-from its very nature, being a nudum pactum,13 "it seems logically to lead to the conclusion that the offeree, in the absence of a timely acceptance of the offer, acquires no right which may be the foundation of an action against the offeror, based upon a with

(8) Sizer v. Clark, 116 Wis. 534, 193 N. W. 539; Milwaukee Mechanics' Ins. Co. V. Shea, 60 C. C. A. 103, 123 Fed. 9.

(9) Langdon on Contrs., § 1. In McCullough v. Eagle Ins. Co., 18 Mass. (1 Pick) 278, 283, it is said to be "a sort of contract, which arises from a promise made by one party only, without any consent or acceptance by the other." and then qualified by declaring the obligation exists from an individual towards a body politic or government only-which qualification is an unwarranted limitation of the dostrine.

(10) Rivers v. Oak Lawn Sugar Co., 52 La. Ann. 762, 27 So. 118.

(11) Hopwood v. McClausland, 120 Iowa 218, 94 N. W. 469; Schleider v. Dielman, 44 La. Ann. 462, 10 So. 934; Rivers v. Oak Lawn Sugar Co., 52 La. Ann. 762, 27 So. 118; McMillain v. Philadelphia Co., 159 Pa. St. 142, 28 Atl. 220; Milwaukee Mechanics' Ins. Co., 60 C. C. A. 103, 123 Fed. 9; see James on Option Contracts, §§ 801872.

(12) Clark v. American Devel. & Min. Co., 28 Mont. 468, 72 Pac. 978; Trogdon v. Williams, 144 N. C. 192, 10 L. R. A. (N. S.) 867, 56 S. E. 865; Horgan v. Russell, 24 N. D. 490, 43 L. R. A. (N. S.) 1150, 140 N. W. 99; Pollock v. Brookover, 60 W. Va. 75, 6 L. R. A. (N. S.) 403, 53 S. E. 795. In the latter case, after the option had expired by limitation of time, the land owner said he was not getting enough for his property, employed a person to assist in clearing certain defects in his title and co-operated with him during the work; held that this did not have the effect of extending the time within which the option might be accepted.

(13) Kirby-Carpenter Co. v. Burnett, 75 C. C. A. 437, 144 Fed. 635.

14

drawal of the offer, by the latter, prior to acceptance;" because there being no consideration for the offer there is no obligation on the part of the offeror to keep it good, for the principle of law that a promise is invalid and unenforceable if not supported by a consideration applies to offers to sell or options to purchase, the same as to other contracts.15

In the case of an option proper, however, in which there is a valuable consideration paid for the promise, and a given time fixed for its exercise-that is, for entering into a valid and binding contract. of sale and purchase on the terms and conditions, and at the price fixed in the contract of option-a different situation arises; and the cases seem to be unanimous in holding that the offeree has an action for the breach of the option contract where he has exercised his option within the time and on the terms and conditions specified in the option contract. But in an unusually well-written and thoughtful work which has just come to my desk1 I find the (to me) novel doctrine laid down that the optionee has a right of action in those cases where the optionor has pre-breached the option contract and put it beyond his power to perform, without an election and notice.

I am loath to set up my opinion against or to criticise anything I find in a work so broad and scholarly in its scope, so ex

(14) James on Option Contracts, § 1104, p. 504; see Abbott v. 76 Land & Water Co., 101 Cal. 567, 53 Pac. 445; Sivell v. Hogan, 119 Ga. 167, 46 S. E. 67; Hochester v. Baruch, 5 Daly (N. Y.) 440; Scott v. Merrill's Estate, 74 Ore. 568, 146 Pac. 99; Kirby-Carpenter Co. v. Burnett, 75 C. C. A. 437, 144 Fed. 635.

(15) Kirby-Carpenter Co. v. Burnett, 75 C. C. A. 437, 144 Fed. 635; see Brost v. Sampsom, 90 Ala. 373, 7 So. 814; Peacock v. Deweese, 73 Ga. 570;Crandall v. Willig, 166 Ill. 233, 46 N. E. 755; Bean v. Burbank, 16 Me. 458, 33 Am. Dec. 681; Davis v. Petty, 147 Mo. 374, 48 S. W. 944; Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695; Barnet v. Besco, 4 Johns. (N. Y.) 235; Walker v. Bamberger, 17 Utah 239, 54 Pac. 108; Faulkner v. Hebard, 26 Vt. 452; Graybill v. Brugh, 89 Va. 895, 37 Am. St. Rep. 894, 21 L. R. A. 133, 17 S. E. 558; Richardson v. Hardwick, 106 U. S. 252, 27 L. Ed. 145, 1 Sup. Ct. Rep. 213. (16) James on Option Contracts, § 1104.

haustive of the cases on the narrow subject, so logical in its arrangement and reasonings, so lucid in its expositions, throwing a helpful "searchlight" into so many dark corners, and elucidating in an able and lawyerlike way so many perplexing problems; but I cannot, as yet, bring myself to fully agree with the learned author in his contention that if, during the time limit of the option, the optionor breaches the option agreement by repudiating the option, or by placing himself in a position where it is impossible for him to perform, that "it would seem the optionee has an action to recover damages arising from breach of the option, although

he has not elected." It will be observed that the careful author does not lay down this doctrine in a dogmatic and positive manner, but simply declares that "it seems," as though he was not himself fully satisfied that the cases cited are correct in principle, although they fully warrant the statement

in the text.

If the optionee had exercised his option, elected and given notice within the time limit fixed in the option contract, even though the optionor had at that time, and before the election of the offeree, breached the option contract and put it out of his power to perform, then and in that case there could be no question regarding the right of the optionee to maintain an action. for damages for breach of the option contract. But does the offeree sacrifice his rights and put himself beyond the pale of redress by his failure to elect after the breach of the option contract and within the time specified therein, and after the optionor has put it out of his power to perform? It is perfectly plain that to elect and make formal offer to perform under such circumstances would be a vain and useless act, so far as the carrying out of the option contract is concerned. It is a general principle of law that courts will not bother with trifles; and I take it that they will not require litigants to do vain and use

(17) Citing and abstracting quite fully Pearson v. Horne, 139 Ga. 453, 77 S. E. 387.