The plaintiff being the mother of an illegitimate child, begotten by the defendant, they entered into articles of agreement in respect to the custody and nurture of the child, the provisions of which material to this suit are as follows: "That the said James T. Schonwald, being anxious to provide support and maintenance for a certain female child, known by the name of Eveleen, and the said party of the second part having agreed to keep, rear and maintain the said child until she comes of lawful age, hath, and by these presents doth, for himself, his heirs, etc., covenant . . . to and with the said party of the second (428) part that he will well and truly pay, or cause to be paid, to her, or her order, annually during the minority of said child, . . . $120, in twelve equal annual instalments of $10 each, . . . and to continue during the minority of the said child, or for such period only as the said child shall remain in the custody of the said party of the second part." Then comes a covenant on her part to "keep, rear and board, clothe and instruct" the said child "during the whole time of her minority, or during the whole time in which she shall remain in her custody." . . . "And it is agreed, understood, and mutually covenanted by and between the parties hereto that if at any time hereafter the said party of the first part shall become dissatisfied with the manner in which the said child is educated, treated, and maintained, or any other cause, or at the request of the said party of the second part, or in the event of her marriage or decease, or the like, that then it shall and may be lawful for the said party of the first part to resume the possession of the said child, without any question, doubt, suit, or trouble."
It was in evidence that the defendant made several payments according to the terms, and some months previous to the beginning of the suit he demanded that the child should be given up to him, which was refused by the mother. It was further in evidence that she has had the custody and nurture of the child from the date of the covenant. *Page 331
The court was of the opinion that the demand made by the defendant for the surrender of the child discharged the defendant from subsequent liability, and so instructed the jury.
The plaintiff excepted. Verdict for the defendant. Judgment and appeal. The decision made in the court below is predicated upon the construction that defendant's obligations arising out of the contract were determinable by him at will. In substance, it was there held that a demand for the child operated as a rescission of the (429) covenant to pay the stipulated price for her support. This seems to us not to be reasonable, and therefore not the true construction of the instrument. It amounts, according to this view, to nothing more than a putting of the child with plaintiff to be brought up, and a promise to pay at the rate of $10 per month for the time she might be permitted to stay there. The parties would hardly have conceived it necessary to resort to the amount of verbiage adopted in the paper to evidence so simple an idea. We take it something more was meant. Our construction is that the child is committed for nuture and education to the plaintiff, to remain until the ward attained the age of 21, unless plaintiff in the meantime shall fail to perform or improperly fulfil her duties (other stipulations and conditions not affecting our inquiries, we omit to notice).
The words of the paper are that "the custody of the child may be resumed by the defendant when he shall become dissatisfied with the manner of its education, treatment, or maintenance, or other cause." A capricious and wanton dissatisfaction on the part of the defendant seems not to have been in the minds of the parties, and would be inconsistent with a fundamental idea in respect to mutual covenants, viz., equal as well as mutual benefits and obligations. The defendant must have cause — reasonable cause, for dissatisfaction. It is only in that state of things he can terminate the woman's right, under the contract, to the custody of the child. And it is very certain that as long as the right is united with the actual custody, the plaintiff may recover the stipulated pay. There was error in the instructions to the jury, and there should, therefore, be a
PER CURIAM. Venire de novo. *Page 332
(430)