Brown v. Brown

SHINN, J.,

pro

tem.

On February 1, 1917, while they were husband and wife, a property settlement was entered into between plaintiff and defendant. By the terms of the agreement certain real and personal property was divided between the parties. The agreement provided that defendant

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would pay the plaintiff the sum of $200 per month until the minor son of -the parties became of age and thereafter the sum of $125 per month during her lifetime, with the further stipulation that if plaintiff obtained a divorce and remarried, the payments to her should cease; that the defendant would keep up the premium payments upon life insurance policies upon defendant’s life during the time that there were obligations to second party unsatisfied under the terms of this instrument. It was further agreed that plaintiff should receive $12,500 from the policies when they became payable and that the estate of defendant would make up any deficiency below that sum. It was agreed that in the event the parties were divorced defendant would pay plaintiff within five years after her remarriage the sum of $12,500, with interest from the date of her remarriage; that the policies should be held by plaintiff as security for all moneys which might become due under the terms of the agreement, namely, said monthly payments and the sum of $12,500 which was to be paid to plaintiff upon the above stated conditions. Defendant paid under the agreement, over a period of years, the sum of $19,833. He kept up the premium payments until 1930, when the policies were canceled because of the failure of defendant to pay further premiums. Plaintiff’s first cause of action was for the sum of $1,077 alleged to be due and unpaid on account of accumulated monthly instalments; her second cause of action was for $456 interest on money alleged to have been received by defendant for the use and benefit of plaintiff; the third cause of action was for the recovery of $11,225, being the sum of $12,500 mentioned in the agreement, less $1275 alleged to have been paid on account thereof, which sum it was alleged defendant had received for the use and benefit of plaintiff; the fourth cause of action was for the same amount alleged to be due on an account stated; and the fifth cause of action was for damages alleged to have been suffered by plaintiff by reason of the failure of defendant to keep the policies in force.