The opinion
GOODELL, J.
I dissent.
The court instructed the jury as follows: “You are instructed that a contract, whether written or oral, is an agreement between two or more parties, competent to contract, upon a lawful subject matter with a legal consideration and a mutuality of agreement and obligation. Such a contract is the one alleged to have been made in this case, and it should be enforced if its terms are established to your satisfaction by the evidence and under the instructions of the court.” (Emphasis added.)
The language just emphasized told the jury that the contract sued on had “a lawful subject matter with a legal consideration” and that, if proved, it should be enforced. The contract pleaded was not only unenforceable because not in writing but was one wherein plaintiff promised to marry decedent “at a future date when legally entitled to do so.” Indeed that promise was alleged to be part of the consideration for decedent’s promises. At the time when these promises were exchanged the plaintiff was a married woman. She *311 did not commence divorce proceedings against her husband until after decedent’s death.
In Smith v. McPherson, 176 Cal. 144, 146 [ 167 P. 875 , L.R.A. 1918B 66 ], a breach of promise case, the court said: “Appellant contends that as the original promise of marriage was given by defendant at the time defendant was a married man and must necessarily rest for its fulfillment upon the basic consideration of securing a divorce, the plaintiff’s whole case must fall to the ground. It is unquestionably true that a promise given under such circumstances is against the manifest policy of the law and therefore wholly void (Noice v. Brown, 39 N.J.L. 133 [ 23 Am.Rep. 213 ] ; Paddock v. Robinson, 63 Ill. 99 [ 14 Am.Rep. 112 ].) Nor will this court in the slightest modify so salutary a principle.” For reasons which appear in the opinion, the language just quoted was not necessary to the decision; the judgment, in plaintiff’s favor, was affirmed on other grounds. Although it was but a dictum, there can be no doubt that it is an accurate statement of the law. In Hilbert v. Kundicoff, 204 Cal. 485, 486 [ 268 P. 905 ], the court reaffirmed the rule and cited Smith v. McPherson approvingly. An annotation at 130 American Law Reports 1011 indicates that it is the prevailing rule and cites numerous cases, including Smith v. McPherson. The annotator says “. . . the fact that such an agreement encourages divorce is obvious.”
Such being the settled law on the subject, it was prejudicial error to instruct the jury that such a contract, based in part on the promise of a married woman to marry “at a future date when legally entitled to do so,” was based on a legal consideration.
It should be observed, further, that the contract pleaded in the first count was likewise carried into the second, for the second count by reference pleaded the filing of the creditor’s claim, which claim set forth the plaintiff’s promise to marry decedent “at a future date when legally entitled to do so.”
For these reasons I am constrained to dissent.
A petition for a rehearing was denied February 16, 1948, and the following opinion was then rendered:
JONES, J. pro tem.
The petition for a rehearing fails to recognize that the essence of the claim in this case is the *312 rendition of personal services. The plaintiff has sued to recover for these services in two counts. In the first count $5,000 is sought to be recovered upon the ground that this amount was expressly agreed to be paid; the second count is for the reasonable value of said services in whatever amount the proof might show such value to be. The jury was instructed with respect to both express and implied contracts, and brought in a verdict for $4,000. This is less than the alleged agreed price and is what the jury found the services to be reasonably worth under the second count.
Nourse, P. J., concurred.
Goodell, J., votes for a rehearing.
Appellant’s petition for a hearing by the Supreme Court was denied March 18, 1948. Shenk, J., and Edmonds, J., voted for a hearing.