Sanders v. Sanders

[232]

KNIGHT, J.

The parties to this action, in contemplation of divorce proceedings, entered into a property settlement evidenced by an agreement in writing dated January 5, 1920, which read in part as follows: “Said party of the first part [defendant herein] agrees to pay said party of the second part [plaintiff],

so long as she remains unmarried to any other person,

the sum of Fifty Dollars per month, ... on the first day of each month, commencing with the first day of January, 1920. Said monthly payments to be made in full payment for the support of said party of the second part and their minor children Lucile Sanders and Doris Sanders. In the event of a divorce being granted to either party

and the remarriage of said party of the second part,

said party of the first part agrees to continue the payment of said sum of Fifty Dollars per month, to said children for their support and maintenance until such time as they are self-supporting or married.” (Italics ours.) Defendant agreed also to pay to plaintiff at least one-half of the medical expenses incurred by her in the event of serious illness of either of said children, provided the total amount of said expense incurred exceeded $25. Following the execution of the agreement defendant obtained a divorce and paid the monthly installments called for by the agreement up to and including November 1, 1929, at which time he refused to make any further

payments;

and after a lapse of several months plaintiff instituted this action to collect the delinquent installments and also one-half of the amount of medical expenses incurred by her in caring for one of the children. Judgment was rendered in favor of plaintiff and defendant appeals.

Defendant admits that plaintiff never remarried and that he has not paid the sums for which suit is brought; and he concedes, therefore, that the judgment rendered conforms to the terms of said agreement. But he claimed at the trial that the attorney employed by him to prepare said agreement made a mistake in drafting the clause relating to the termination of the monthly payments; and that consequently, as executed, said agreement did not truly express the intention of the parties, all of which was set up in his answer by way of an affirmative defense. In this regard it was